Waterways: Thames River Bank

Lord Lloyd of Berwick: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest in that I live on the river bank in Chiswick.
	The Question was as follows:
	To ask Her Majesty's Government whether they will take steps to discourage the Port of London Authority from felling riverside trees between Putney and Kew.

Lord Bassam of Brighton: My Lords, the Port of London is a trust port acting within its own local legislation. The port authority has a duty to ensure the safety of navigation on the River Thames. Recently, this has involved felling riverside trees. This is not a matter for government intervention. The port authority consulted locally and adapted its plans before starting work. It will consult further as part of a structured tree management programme, including compensation planting.

Lord Lloyd of Berwick: My Lords, I thank the Minister for that reply. I am glad to hear that the PLA is going to consult further, but would it not have been better if it had consulted much more widely before felling half the trees on a particularly beautiful stretch of the river bank at Hammersmith? Will he do his best as Minister responsible for the environment to ensure that in future the PLA gives full priority to the needs of the environment when making its plans?

Lord Bassam of Brighton: My Lords, I think that the Port of London Authority has a profound environmental obligation, and I understand exactly what the noble and learned Lord says about the importance and value of consultation. Consultation was conducted last autumn involving the local authority, Richmond Borough Council, the Environment Agency and local groups, but of course I shall remind the PLA of its obligations.

Lord Crickhowell: My Lords, as strong and conflicting opinions have been expressed about the PLA's recent activities and the PLA has a very difficult task in reconciling the need to preserve its structures and protect river users with its environmental duties under the Harbours Act 1964 and the Conservation (Natural Habitats, &c.) Regulations 1994, does the Minister agree that it is desirable that no further work should be undertaken on the tree-felling programme before an environmental impact assessment and the promised tree survey have both been completed and made available to the public for widespread consultation?

Lord Bassam of Brighton: My Lords, the PLA has to make a judgment, as it is its responsibility, as to its environmental approach here. I do not think that we should necessarily assume that it is bad for the environment that an element of felling or pruning takes place. We have to consider the impact of unseeded tree growth on the retaining walls and the subsequent effect not only on cyclists and pedestrians using the towpath but on those who use the rivers, such as rowers.

Baroness Wilcox: My Lords, I declare an old interest as the deputy chairman of the Port of London Authority. One has to remember that closing in a river such as our Thames is a very dangerous thing to do. Over the years we have closed it in more and more. The "rebuts" to which the noble Lord referred are a very important part of efforts to keep us safe from flooding. Although it is nice to have a view, does the Minister agree with me that we must be careful not to flood London?

Lord Bassam of Brighton: My Lords, 8 million Londoners probably agree with the noble Baroness.

Baroness Tonge: My Lords, I, too, declare an interest as a long-term resident of Kew. Is the Minister also aware that the PLA is allowing a proliferation of residential houseboats to moor along this stretch of the river without planning permission, all of which are discharging untreated sewage into the Thames? Will he please bring this to the attention of the Port of London Authority and make it aware of its environmental responsibilities?

Lord Bassam of Brighton: My Lords, given that the noble Baroness is a local resident with great experience of this part of London, I take her remarks at face value. It would be negligent indeed of me not to point this matter out to the PLA.

Lord Stoddart of Swindon: My Lords, surely this is not just a matter for the PLA. The local authority has the right, the duty and the authorisation to put tree preservation orders on trees that are of value to the community. If the local authority can put a preservation order on a yew tree in my small garden, surely it can do something to protect the Thames riverbank.

Lord Bassam of Brighton: My Lords, I do not know whether I have direct responsibility for tree preservation orders. However, if I had, I would probably put one on the noble Lord's yew tree. Tree preservation orders are generally the responsibility of the local authority, and the PLA has to its credit been in detailed consultation with Richmond borough council. That has to be right.

The Earl of Selborne: My Lords, I also declare an interest as chairman of the trustees of the Royal Botanic Gardens, Kew. If there had been a long-term management plan for the towpath, agreed by all interested parties, would it not have been much easier to manage this on a sensible basis and not to have to take draconian action every few years simply because of neglect of timely management measures?

Lord Bassam of Brighton: My Lords, I think it has to be accepted that there was a bit of an issue here. The maintenance programme may have fallen behind, which is possibly why the PLA began the pilot. The PLA is now properly addressing the issue. It should be supported in this because it will over time improve the quality of the managed environment.

Education Maintenance Allowance

Baroness Massey of Darwen: asked Her Majesty's Government:
	How many young people have benefited from the education maintenance allowance; and what steps they will take to increase its take-up.

Lord Adonis: My Lords, since national roll-out of the education maintenance allowance in 2004, 1,139,769 young people have benefited from it. The Learning and Skills Council, which has operational responsibility for EMAs, has recently launched a new EMA marketing campaign designed to increase EMA take-up even further. Over the past year, the Government have spent £6.5 million marketing EMAs to young people and their families.

Baroness Massey of Darwen: My Lords, I thank the Minister for that helpful response. What measures are in place to encourage young people who are disadvantaged or disengaged with the system to take up the scheme, and what impact have they had?

Lord Adonis: My Lords, I am glad to say that take-up is high, particularly among the more disadvantaged groups to whom my noble friend refers. Among those eligible for the £30 EMA band, who are the most disadvantaged part of the cohort, 92 per cent take it up. But to enhance this further we have increased the range of courses eligible to receive EMAs to include, for example, European Social Fund-funded projects in disadvantaged areas.

Baroness Verma: My Lords, can the Minister say what published evidence there is to show that EMAs have had a positive impact on achievement rates?

Lord Adonis: My Lords, the EMA pilot evaluation evidence showed that the EMA has led to increased participation nationally by 3.8 percentage points for 16 year-olds and 4.1 percentage points for 17 year-olds. Participation in full-time education and training among 16 to 18 year-olds is the highest that we have ever had, so the evidence is strong and robust.

Baroness Walmsley: My Lords, does the Minister agree with me in hoping that the EMA will encourage many young people to carry on learning into adult life? But is he aware that if they carry on doing that as adult learners in a college, only 10 per cent will continue to receive financial support, compared with the 60 per cent of university students who receive it? At a time when we need to upskill the workforce, what are the Government doing about that discrepancy?

Lord Adonis: My Lords, we are making huge investments in this area. EMAs account for more than £500 million a year of public spending on a programme that did not previously exist. The noble Baroness is right to say that certain parts of the further education world would like additional financial support to be provided, but we are making a good start with EMAs. The greatest indicators of propensity to continue studying are achievements in AS- and A-levels, and level 3 qualifications. EMAs are pushing up levels of achievement among 16 to 18 year-olds, which are much higher than they were previously.

Lord Bilston: My Lords, education maintenance allowances have been a real success story for our Government, and half a million students are in receipt of the grant. I know that many students are extremely grateful for that contribution. The administration of the scheme is also hugely successful, and that has contributed greatly to its success. Will my noble friend confirm that the scheme, which is so successful, will be rolled out and kept alive even after post-16 education and training become compulsory in 2015?

Lord Adonis: My Lords, I entirely agree with my noble friend. The introduction of education maintenance allowances is one of the great educational and social successes of this Labour Government, and we can take pride in that. The numbers continue to increase. As my noble friend said, 540,000 students are in receipt of education maintenance allowances—an increase on 430,000 only two years ago. I can confirm that when the education participation age rises to 17 in 2013 and to 18 in 2015, we will sustain education maintenance allowances.

Baroness Howe of Idlicote: My Lords, has there been any analysis of whether young people with high truancy rates have been attracted back into education by this allowance? Do those in part-time education qualify—for example, those who would like to combine employment with training?

Lord Adonis: My Lords, our whole policy is for 16 to 18 year-olds to remain in full-time education or training and we have successfully increased participation rates in that respect. However, the noble Baroness has drawn attention to an important option for 16 to 18 year-olds: apprenticeships, which combine work with part-time training. There has been a substantial increase in apprenticeship numbers in recent years and we are committed to a further increase, so that, alongside the raising of the education and training participation age to 18, there will be an opportunity for all young people to undertake an apprenticeship if they wish to do so.

The Earl of Listowel: My Lords, what specific impact has there been on the number of children in public care who continue in education or training? Will the Minister ensure that the marketing operation is as effective as possible by, for instance, contacting the National Centre for Excellence in Residential Child Care and other organisations in this area?

Lord Adonis: My Lords, I certainly undertake to make the connections that the noble Earl referred to. Participation and attainment rates among children in care are rising, but, as the House knows only too well from our recent debates on the Children and Young Persons Bill, the rates are low and will have to rise a good deal further before we can be satisfied.

Baroness Sharp of Guildford: My Lords, does the Minister not agree that, although the educational maintenance allowance has been very successful in increasing participation, we still have a distressingly large number of young people aged 16 who leave school as soon as they can? How far do the Government feel that the measures they are taking will be successful in keeping those young people in education and keeping them motivated?

Lord Adonis: My Lords, the proportion of 16 year-olds in full-time education and training now stands, according to the most recent figures, at 78.1 per cent, which is the highest rate ever. Policies, including the introduction of educational maintenance allowances, are helping to increase participation but, as the noble Baroness knows well because it has been a cause dear to her heart for many years, until we have a fully appropriate curriculum for 16 to 18 year-olds, we are not going to reach those who have not been sufficiently motivated to stay on in the past. That is why, in particular, the introduction of vocational diplomas, which starts in schools and colleges nationwide from this September, is so important. If we can establish a fully appropriate curriculum leading to worthwhile qualifications and a pathway on to both higher education and apprenticeships, I believe we will close that remaining gap in terms of participation.

Lord Dearing: My Lords, since the ability to fill in complex government forms is an important part of anybody's education, in the light of the indication that 7 per cent are not being reached, would it not be a good idea to invite schools to get all the kids to fill in a form before they leave?

Lord Adonis: My Lords, no forms could be simpler than those issued by my department. The only problem is understanding what the department's acronym stands for but that is not one of the questions which EMA applicants have to answer before they are eligible for their £30 a week. However, in addition to the paper application forms by which people currently apply for EMAs, from this September it will also be possible to apply by phone and online. So we are meeting all needs in this respect.

Lord Roberts of Llandudno: My Lords, while we celebrate the success of the allowance scheme in England, education is devolved to the other nations of the United Kingdom. Can the Minister inform us what link there is and how the success in England is being repeated in Wales, Scotland and Northern Ireland?

Lord Adonis: My Lords, I am sure the success is being repeated in all those constituent parts of the United Kingdom, but I do not have the facts at my fingertips. I will write to the noble Lord and let him know.

Disabled People: Sports Stadia

Lord Faulkner of Worcester: asked Her Majesty's Government:
	What steps they are taking to improve facilities for disabled supporters at sports stadia.

Lord Davies of Oldham: My Lords, the Government have set out clear standards for the provision of disabled spectators' facilities. To assist stadium owners and management to deliver an experience for disabled supporters that is equal to that of their able-bodied counterparts, we have produced the Accessible Stadia guidance in consultation with the National Association of Disabled Supporters. The Minister for Sport has recently written to the Premier League and the Football League reminding them of their responsibilities in this area.

Lord Faulkner of Worcester: My Lords, I thank my noble friend for that Answer. I declare an interest as the vice-president of the National Association of Disabled Supporters and as one of the authors of the football task force report that recommended almost 10 years ago significant improvements in the facilities available for disabled people at football grounds. My noble friend referred to the excellent letter that the Minister for Sport has written to the football bodies, drawing attention to how much still needs to be done. What replies have been received from those two organisations, and what does he think needs to be done to ensure that the Accessible Stadia guidance is followed in football and other sports stadiums around the country?

Lord Davies of Oldham: My Lords, the Minister for Sport has taken the opportunity of his meetings with the chair of the Football Association and officials of the Premier League and the Football League to emphasise these issues. We should pay tribute to the improvement that has been effected over the last decade. It is reckoned that now 30,000 disabled supporters attend football grounds each weekend, and we have in Wembley Stadium not only one of the finest stadia in the world but one that is an absolute example of how to treat disabled supporters on the same basis as their more able-bodied counterparts. So we are making considerable progress, and that is also true of the planning for the Olympic Games.

Lord Rix: My Lords, is the Minister aware that many people with profound and multiple disabilities are avid sports watchers just like their non-disabled peers? Unfortunately, the disability toilets available at grounds are now not suitable for such disabled people. Will he therefore use his best endeavours to ensure that stadia will install for those disabled people toilets that include a changing bench, a hoist and space, so that they can enjoy the football, or whatever other sports activity it is, just like the rest of us?

Lord Davies of Oldham: My Lords, the Accessible Stadia guidance, which is the document recommended by the governing bodies of sports to encourage the development of facilities for the disabled, contains the aspects that the noble Lord identified. It is clear that disabled supporters need all the facilities that others would want. I cannot pretend that we have 100 per cent coverage, because we are a long way off that with regard to football stadia and many other sports stadia. However, all sports are making great progress. Twickenham is an example in rugby; the Oval cricket ground and the Rose Bowl in Hampshire are also examples. As I mentioned, Wembley Stadium is an outstanding illustration of how to consider the needs of the disabled.

Lord Addington: My Lords, does the noble Lord agree that the defence of reasonableness is placed in all disability legislation? That defence means that you must do what is reasonably practicable at the time. If the sporting bodies are not fulfilling that, will the Government ensure that in every way those bodies are dealt with as harshly as someone else who is not complying with the duty of reasonableness?

Lord Davies of Oldham: Indeed so, my Lords. We all recognise that there have been significant adjustments throughout society to the needs of the disabled consequent on legislation that has now been in place for more than a decade but which many noble Lords will regard as having been long overdue. Of course, one has to shift attitudes in society, but I think that on all sides we recognise that progress is being made. To give one illustration of a sporting event, the disabled marathon race is watched with at least the same degree of enthusiasm and excitement as the marathon race itself in London. That is an example of integration of the disabled into the true sporting arena.

Lord Hoyle: My Lords, I declare an interest as chairman of Warrington Wolves Rugby League Club. I invite my noble friend to visit our stadium, the Halliwell Jones, where he will see disability facilities second to none, where people with disabilities are not separated from their friends but can sit with them and where commentaries are available for those whose eyesight is not too good. The reason for that is that the personal adviser is not only disabled himself but a consultant on disability. Would it not be a good thing to urge people when improving disability facilities at stadiums to seek the advice of people with such knowledge of disability?

Lord Davies of Oldham: My Lords, I mentioned a number of significant sports but not Rugby League, as I saw that my noble friend was in his place and knew that the opportunity would occur later. Of course he is right: the Halliwell stadium in Warrington is an outstanding illustration of a stadium that caters well for the disabled. He is also right to say that others can learn from the experience of the work that has been done. It is important that sports' leading bodies take the initiative on this, which is why the Minister for Sport wrote to the Premier League and the Football Association reminding them in particular of the progress that they need to continue to make.

Baroness Billingham: My Lords, can the Minister assure us that all the venues for the London Olympics will be fully available for people with disability? That means not just stadia but stands and open spaces. Surely we want to ensure that all those venues are fully available and can be enjoyed by everyone.

Lord Davies of Oldham: My Lords, the House will appreciate that the Olympic Games also include the Paralympics, so it would be extraordinary if the Olympic movement was not certain that disabled supporters and spectators were catered for adequately. I assure the House that, in the plans for the Olympic Games, the interests of disabled supporters will be very much to the fore. That is the basis of the planning of the stadia.

Syria: Nuclear Weapons

Baroness Symons of Vernham Dean: asked Her Majesty's Government:
	What assessment they have made of the CIA claim that the Government of Syria were developing a nuclear weapon capability with help from the Government of North Korea.

Lord Malloch-Brown: My Lords, the CIA briefed Members of the Senate and House intelligence committees and the media on this issue on 24 April and showed a video that appears to support the assessment that Syria was building a nuclear site with North Korean co-operation. These concerns demonstrate the importance of the additional safeguard measures that the IAEA has repeatedly requested all countries to adhere to.

Baroness Symons of Vernham Dean: My Lords, I thank my noble friend for that Answer. Does he recognise the scepticism that is bound to exist about such a report based on US intelligence assessments, given that they have been so very wrong in the recent past about similar issues? Does he share the belief that this report underlines the importance of greater diplomatic engagement with Syria, particularly by the United Kingdom, France and Germany?

Lord Malloch-Brown: My Lords, my noble friend is well aware that we have a golden rule in government not to comment on intelligence assessments. Much more prominent figures than I on both sides of the Atlantic have ignored this rule at their peril. Let me just say that I put great faith in the IAEA, which has agreed to assess the evidence and to provide an objective judgment on whether what the report purports to show is correct. I would add that officials here in the United Kingdom are very impressed by the evidence they have seen.
	As to the second point, yes, this proves the need for intensified diplomatic effort.

Lord Howell of Guildford: My Lords, I do not want to put the Minister in any peril about these matters, but is it not the case that when the CIA was pressed at the briefing on whether this was a nuclear weapons development with a potential for creating fuel for weaponisation it said that it had "low confidence"—I think that was the phrase—in that assessment. That was of course jargon for it did not have a clue about whether it was going to be weaponised or not. Do not the real questions concern whether the IAEA was involved in assessing the civil nuclear potential of this site at all, whether the Israelis had any contact with the IAEA, and what contact they had with the United States before they decided to knock it out?

Lord Malloch-Brown: My Lords, the IAEA has made it clear that it was not aware of the allegations about this site or indeed of the evidence presented last week until then. Clearly, the IAEA has a lot of catching up to do to process this material and to judge what it does not represent.

Lord Hannay of Chiswick: My Lords, have the Government of Syria agreed to allow the IAEA to inspect the site and to give it full access to everything the Syrian Government might or might not have been doing at that site? Will he also clarify what would be the legal position of the Syrian Government in respect of the non-proliferation treaty and in respect of any safeguard agreements it has with the International Atomic Energy Agency if it turned out that it had indeed had a covert nuclear programme at that site?

Lord Malloch-Brown: My Lords, Syria is required to give access to the IAEA as a signatory to the NPT and, similarly, if it has been preparing a secret nuclear weapons site it is evidently completely in breach of its NPT undertakings. Again, we need to wait for the IAEA assessment.

Lord Wallace of Saltaire: My Lords, the Minister will be aware of the unhappy coincidence that this information was released by the CIA just after former President Carter had told us all that Syria wanted to open discussions with the United States and in the context of well-founded reports in Washington that the Turkish Government have been attempting to help the Syrians and the Israelis to talk directly. Can the Minister reassure us that the Government are in favour of inclusive talks on these Middle East problems and not of excluding particular parties, which seems to be what many within the Bush Administration wish to do.

Lord Malloch-Brown: My Lords, obviously the noble Lord would not expect me to comment on the coincidences he refers to, but I can confirm that the United Kingdom Government remain strongly in favour of inclusive peace talks. Indeed, we were one of those who pressed hard for the Syrians to be included at Annapolis.

Lord Elystan-Morgan: My Lords, does the Minister agree that, irrespective of the CIA's accusations, there is mounting evidence of at least the ambiguity that surrounds the intentions of Syria in relation to nuclear development? Does he accept that that goes some way to explaining why the state of Israel does not have an incandescent enthusiasm for signing a non-proliferation treaty and ceasing to be a nuclear power?

Lord Malloch-Brown: My Lords, I agree with the noble Lord's concern. This represents potentially a major breach of the NPT and a major threat to international affairs, but it must wait until the assessment is made. I would say to the noble Lord and to the state of Israel that it is precisely because Syria is a party to the NPT that we have an international means of verification available to us. As a party to the treaty, Syria must allow international inspections in order to confirm or refute the charge that it has a weapons programme under development.

Lord Roper: My Lords, what are the obligations of a member of the IAEA to bring to the attention of the agency evidence of a breach of the NPT, and why it was necessary to delay from 7 September last until this April before that information was made available?

Lord Malloch-Brown: My Lords, press reports show that Dr El Baradei, the director-general of the IAEA, raised some of the same concerns. We will have to wait to see the exchanges between him and the United States on that. I cannot pretend to be privy to the precise obligations, but, as I understand it, this kind of information should be brought to the IAEA by its members in a timely way.

London Local Authorities and Transport for London Bill

Lord Brabazon of Tara: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That the Bill be recommitted to an Unopposed Bill Committee in respect of Part 1 (Preliminary), Part 5 (Non-payment of penalty charges) and Schedule 2 (Representations and appeals in relation to the removal of vehicles, and enforcement).—(The Chairman of Committees.)

Moved accordingly, and, on Question, Motion agreed to.

Housing and Regeneration Bill

Baroness Andrews: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That the Bill be committed to a Grand Committee.—(Baroness Andrews.)

Moved accordingly, and, on Question, Motion agreed to.

European Union (Amendment) Bill

Baroness Ashton of Upholland: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.
	House in Committee accordingly.
	[The LORD SPEAKER in the Chair.]
	Clause 2 [Addition to list of treaties]:

Lord Kingsland: moved Amendment No. 7:
	Clause 2, page 1, line 12, after "excluding" insert—
	"(i) Article 1, paragraph 8, replacement Article 6 TEU, paragraph 1, concerning the Charter of Fundamental Rights; and(ii) "

Lord Kingsland: I shall speak also to the other amendments in this group. Your Lordships are already familiar with the way in which Amendment No. 7 works. In addition to excluding the provision in the Bill relating to the common foreign and security policy, it would also exclude important aspects relating to the charter. On the other amendments in this group, I refer in particular to Amendment No. 117, which is in the name of my noble friend Lord Blackwell. In effect, this amendment achieves in a different way the same objective as we seek. The great merit of my noble friend's amendment is that it states in terms exactly why he believes that the charter should not be given any form of legal status in the United Kingdom.
	As many noble Lords are aware, the Government's view is that the charter will make no difference at all to the legal landscape in the United Kingdom because it is incapable of creating new rights. It is fair to say that that is the view of many of the academics who have given evidence to the various parliamentary committees which have been engaged in investigating this issue.
	At page 23 of the third report of Session 2007-08 of the scrutiny committee in another place, the Foreign Secretary, the right honourable Mr Miliband said that,
	"the Charter records existing rights; it does not create a single new right. Some people would like it to create new rights, but it does not ... the Charter, in words of one or two syllables, makes absolutely clear that there is no extension of the reach of the ECJ or of any other court".
	If that is so, two questions immediately arise. The first is: why were the Community draftsmen so keen on amending the treaty to include the charter? Why have the charter if it makes no difference whatever? Let us assume for a moment that it does not make any difference. What could it possibly bring? I have long taken the view that the European institutions have consistently refused to sign up to the European Convention on Human Rights because they did not want the Court in Strasbourg to have the last word on the definition of human rights. It was almost a question of prestige. Now that the charter of fundamental rights has been established through the Lisbon treaty and is about to get legal force, the Community institutions can be much more relaxed about this matter. It comes as no surprise to see that now, at last, they are indeed prepared to become signatories to the European Council's own convention, because they believe that their court and their legal system now carry a weight as heavy as that of the European Council. That is one reason why having the charter is consistent with it having, in other respects, no legal effect whatever.
	The other question that arises is: if it is true that the charter has no legal effect, why did Mr Blair, then the Prime Minister, make such a fuss about the red lines? Was he just grandstanding—"impossible", I am sure many noble Lords might say—or does he not share the Foreign Secretary's confidence? Why did Mr Blair think that he needed the protocol?
	The crucial clauses of the protocol are Articles 1.1 and 1.2, which, I remind your Lordships, read as follows. Article 1.1 states:
	"The Charter does not extend the ability of the Court of Justice ... or any court or tribunal ... of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action ... of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms".
	Article 1.2 states:
	"In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to ... the United Kingdom except in so far as ... the United Kingdom has provided for such rights in its national law".
	If Mr Blair is right and Mr Miliband is wrong, does the protocol put the matter beyond doubt?
	Article 1.1 simply reiterates the proposition advanced by Mr Miliband in his evidence to the scrutiny committee. Indeed, in his evidence in the third report of the 2007-08 Session, Mr Miliband simply sees Article 1.1 as restating the legal position in the treaty. I apologise to your Lordships for making another quotation but I think that it is germane to the argument. He says that,
	"the Protocol is important because it has legal status as much as an Article, and the Protocol is absolutely clear that there can be no extended reach before the ECJ or anyone else, and that is why, in the case of working time or anything else, any judgment of the court cannot have reach into changing the laws that apply in this country ... As I say, the Charter records existing rights but there is a double-lock, because the Protocol records that the Charter shall not be used to extend the reach of the Court of Justice".
	Curiously, Article 1.2 makes a reference only to one matter—Title IV—and might be said to enhance its status by comparison with other matters in the chapter.
	However, the protocol has a preamble, which would form part of the materials that the European Court of Justice will use to construe the protocol. That preamble states, inter alia, that the protocol is expressed to be without prejudice to other obligations of the United Kingdom,
	"under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally".
	What conclusions can we draw from all this? The first and perhaps most important one is that it is plain that, irrespective of the protocol, the charter does apply to the United Kingdom. Secondly, it is also plain that the final arbiter of just what effect it will have is the European Court of Justice. So the construction of the charter will, in the last resort, be a matter not for our own courts but for the ECJ. That is the basis of many people's concern about the likely development of law once the charter is incorporated into the Community's jurisprudential system.
	Compared with the United States Supreme Court, the European Court of Justice has had a short history that is not unlike the early history of that court. Neither the United States constitution nor the treaty of Rome contained any clause about the primacy of community law over national law, and yet within a very short time—in 1803 in the case of the United States, with the famous case of Marbury v Madison; and in 1964 in the case of the European Community, in the equally well known case of Van Gend en Loos—the United States Supreme Court and the European Court of Justice both declared that federal law, and European law in the case of the European Community, did indeed have primacy over domestic law.
	Although the intensification of legal integration has varied over the decades, there is no doubt whatever about in which direction the European Court of Justice is going; and although the protocol refers to rights, it does not refer to interpretation. The real concern is that the arrival of the charter will affect the way in which the European Court of Justice interprets the law that currently exists under the treaties. It will be through that mechanism that its influence shall be felt.
	The third conclusion I draw is that since the charter applies to the UK and to our courts, all our institutions will have the obligation to ensure the uniform application of European Community law. Does the protocol trump that general obligation? Mr Miliband was effectively asked that question, in a letter written to him on 11 July 2007, by the chairman of the scrutiny committee in another place. His reply of 31 July is recorded in the committee's 35th report, and I apologise to your Lordships for taking you again to the text. It states:
	"The UK-specific Protocol which the Government secured is not an 'opt-out' from the Charter. Rather, the Protocol clarifies the effect the Charter will have in the UK. The UK Protocol confirms that nothing in the Charter extends the ability of any court to strike down UK law. In particular, the social and economic provisions of Title IV give people no greater rights than are given in UK law. Any Charter rights referring to national law and practice will have the same limitations as those rights in national law. The Protocol confirms that since the Charter creates no rights, or circumstances in which those rights can be relied upon before the courts, it does not change the status quo".
	Here the Minister omits to address the crucial problem of interpretation, which in the last resort is, as I hope I have already indicated, a matter for the European Court of Justice.
	In commenting on the right honourable gentleman's letter, the chairman of the committee very fairly pointed out that as the protocol is not an opt-out from the charter, and if the Government intended that ECJ case law based on the charter should have no effect at all within the UK, then the words in the preamble to which I drew the Committee's attention earlier, "without prejudice", should have been replaced by the word "notwithstanding". In other words, instead of saying "without prejudice" to all the other obligations that Community law brings to the United Kingdom, it ought to have said "notwithstanding" all these other obligations.
	The point has been developed by a number of other commentators in a slightly different context. It has, for example, been asked: "What if the European Court of Justice is called on to interpret a provision in litigation taking place in another member state where that provision is identical to provisions that are already on the statute book in the United Kingdom and the court makes a decision to change the interpretation of the law in the United Kingdom?". If the protocol operates "without prejudice" to our general obligation to implement Community law, such a decision in another member state which is relevant to an obligation that we already have to the European Community would become the law in the United Kingdom.
	The most obvious example, to which reference was frequently made in another place, is the working time directive. There are extremely powerful provisions in the charter regarding Title IV. If a matter such as the 48-hour week is considered in another jurisdiction, it is possible, because of the way in which the preamble of the charter is drafted, that a more rigorous interpretation by the European Court of Justice of a measure that is identical to the one in the United Kingdom will change the law in the United Kingdom.
	An entirely distinct point relates to the second part of the protocol, which, curiously, refers not to all aspects of the charter but only to Title IV. The Committee will recall especially the words in Article 1.2. What do we make of this? Does it mean that Title IV is only one example of all the examples taken in the charter—in which case, to that extent, one can be relaxed—or does it mean that Title IV is singled out to get special treatment which is not accorded to the other parts of the charter? That remains unclear and I would be interested to know Minister's view.
	The Committee will be extremely relieved to know that I am coming to my concluding observations, both of which are in the form of questions to the noble Baroness. It appears that the EU institutions are at last going to sign up to the European Convention on Human Rights. However, can the noble Baroness tell us something about the timetable envisaged by the member states, and, in particular, what mechanisms are likely to be put in place to allow appeals to the European Court of Human Rights on decisions of the European Court of Justice?
	My final observation also relates to the relationship between the European Court of Justice and the European Court of Human Rights. If there is litigation in this country about a decision which involves the charter and there is a dissatisfied party who wishes to take that matter further and since the United Kingdom is already a signatory to the European convention and it is now perfectly possible through the Human Rights Act 1998 to raise convention matters in the domestic courts, what is to prevent an individual taking this matter up in litigation in this country on the grounds that the European Court of Justice had got the matter wrong and that the better view—if there is already a decision, or ought to be, if there is not yet a decision—is that held, or likely to be held, by the European Court of Human Rights? How does the Minister foresee these matters being handled in domestic litigation? I beg to move.

Lord Lester of Herne Hill: I was about to ask the noble Lord, Lord Kingsland, a question, but I can now do it by explaining my opposition to Amendments Nos. 7, 87, 88 and 89. The noble Lord, Lord Hunt of Wirral, has added his name to this group of amendments and I am delighted to see him in his place. They are designed, in one way or another, to exclude the charter and the UK protocol from the Bill and from UK law.
	Eight years ago, I had the privilege of serving on Sub-Committee E of the Select Committee on the European Union, chaired by the noble and learned Lord, Lord Hope of Craighead, when we prepared our report on the EU Charter of Fundamental Rights. Other members included the noble Viscount, Lord Bledisloe, my noble friend Lord Goodhart, the noble and learned Lord, Lord Fraser of Carmyllie, and the noble Lord, Lord Norton of Louth. What is noteworthy for this debate is that another member of the committee was the excellent noble Lord, Lord Hunt of Wirral.
	We had the benefit of a wide range of experience. Our report, published on 16 May 2000 as HL Paper 67, identified in paragraph 119 as one of the significant gaps needing to be filled,
	"the absence of a catalogue of fundamental rights in the Treaties".
	We described in paragraph 121 the charter as presenting,
	"a major opportunity for giving more effective protection to the individual in relation to the activities of the institutions of the EU. Translating the principles described above into a reality which is readily recognisable to the peoples of Europe and meaningful in their daily lives is perhaps one of the greatest challenges which confronts those who have been given the task of preparing the Charter".
	We noted in paragraph 126 that while,
	"a declaratory Charter might help to clarify the obligations of the institutions of the EU, it would not confer direct and tangible benefits on individuals".
	In paragraph 127, we observed that the line then being adopted by the Government ran,
	"the risk of appearing to be extremely negative when it comes to the practical protection of the individual against the infringement of rights by the EU institutions".
	We identified in paragraph 128,
	"a significant gap, in that individuals in Europe are not fully protected against the misuse of power by EU institutions that breaches the ECHR. The individual's ability to challenge a measure on fundamental rights grounds is more restricted where the measure is taken by an EU institution than it is where it has been taken by a national authority".
	The adopted charter and the Lisbon treaty meet the very approach taken by the committee of which I and the noble Lord, Lord Hunt, were members. I find it difficult to understand the justification for supporting amendments of this kind. Paragraph 1 of the new Article 6 of the treaty addresses the charter, which was absent from the old Article 6. It recognises the rights, freedoms and principles contained in the charter, giving them, as we had hoped, the same legal value as the treaties.
	Amendment No. 87 would keep this out of the Bill, with the 10th paragraph of the preamble to Protocol 7 on the application of the charter to Poland and the UK reaffirming that references in the charter to the operation of the specific provision of the charter are strictly without prejudice to the operation of other provisions of the charter. Amendment No. 87 would also exclude the 12th paragraph, which provides that the protocol is without prejudice to the operation of other provisions of the charter. Amendment No. 88 for good measure—or bad measure—would exclude recital 12, stating that the protocol is without prejudice to other obligations devolving on the UK under Union law. Amendment No. 89 would exclude specific reference to Title IV of the charter, on economic and social rights, in the UK protocol from Section 1 of the 1972 Act.
	Presumably, we legislate on the basis of evidence and informed opinion. The House has had the great benefit of three reports. One was by its Constitution Committee, which includes the noble and learned Lord, Lord Woolf, assessing the implications for the UK constitution of the Bill and the Lisbon treaty. That was published on 28 March. Another, the report of the EU Committee chaired by the noble Lord, Lord Mance—to which, I hope, I made some contribution—giving its impact assessment on the Lisbon treaty, was published on 13 March. There was a third report by the EU Committee some eight years ago, to which I have referred and to which the noble Lord, Lord Hunt, and I contributed. None of those reports contains anything in the opinions of the committees of this House that in any way supports amendments of the kind now before the Committee. The Constitution Committee's report concluded in paragraph 67:
	"We conclude that the change in status of the Charter from political document to having the force of a treaty would be less of a radical step than at first it may appear. This is because the Charter is declaratory of rights already recognised",
	in the legal systems of the UK and Poland. In other words, it adds nothing new. The EU Committee report reached similar conclusions, but in this case, as any noble Lord will see, we reviewed in great detail, on the basis of evidence, each and every right and principle contained in the charter to examine its effect. We noted in paragraph 5.68 that,
	"declaring the Charter to be legally binding will send a clear message to all institutions and citizens within the Union about the EU's commitment to uphold the rights set out in the Charter".
	I apologise for all these quotes, but they are necessary, I think. We said in paragraph 5.80:
	"Since we consider that the Charter reaffirms rights and principles which already substantially exist, albeit in many cases only at an international level, we expect the effect of the change in the Charter's status to be limited. Courts at both national and EU level will continue to refer to international treaty obligations to interpret the scope of fundamental rights and identify those fundamental principles which are general principles of EU law, whether or not the Charter becomes legally binding".
	All this is well known to the noble Lord, Lord Kingsland, who, like me, has had the benefit and burden of reading some of the Luxembourg judgments on these issues. We expect that reference to the charter would, if the treaty of Lisbon comes into force, become more frequent as the charter's legally binding status would make it more straightforward for individuals to enforce rights that are guaranteed under international law. We also clarified the broad legal effect of the protocol in paragraph 5.103—I will spare the Committee by not reading it now.
	During the debate in Committee on 22 April, the noble Lord, Lord Forsyth of Drumlean—who I am now delighted to see is in his place—accused Liberal Democrats of telling lies and practising deceit. The noble Lord is apparently unimpressed by Standing Order 33—
	"Asperity of speech to be avoided"—
	which was adopted by this House as recently as 13 June 1626. I hope that I shall not be found guilty of using "sharp and taxing language" in breach of Standing Order 33 when I say that the amendments tabled by the Conservative Front Bench, in this grouping, are manifestly ill founded and fly in the face of the painstaking work done by three authoritative committees of this House.
	I agree respectfully with the Government's legal opinions about the effect of the charter and the treaty in this context. Neither the charter nor the treaty threatens the integrity of our legal or political system in any respect. To the contrary—and this point has not been dealt with yet by the noble Lord, Lord Kingsland—we will have, enshrined in EU law for the first time, protection against the abuse of power by EU institutions. I would have thought that the Official Opposition would cheer and welcome something that will make the institutions accountable and uphold the European rule of law. It will do nothing to disturb the work of the Strasbourg court; it will clarify the relationship between the two European courts; and I have heard no specific example of any way in which it will undermine the political or legal system of this country. I therefore oppose these amendments.

Lord Lamont of Lerwick: I support my noble friend on the Front Bench and support Amendments Nos. 7 and 87. I do so with some trepidation, not being a lawyer myself. However, I think that the issues raised by the charter are ones on which all Members of the Committee should be allowed to comment.
	Like other noble Lords, I have followed the progress of the Charter of Fundamental Rights. I was on the Select Committee when the Minister, Mr Vaz, appeared before us and described it as no more significant than the Beano. We then moved on to a different stage, where Ministers became rather alarmed about the charter and remarks about the Beano were dropped. If they were alarmed, they should not be surprised that some of us, to this day, retain some caution and some scepticism about what is proposed, because the Government have constantly shifted their position. The previous Prime Minister, Mr Blair, at one point declared that we had an opt-out from the Social Chapter. Then the Minister of State, Mr Murphy, told the House of Commons that we did not have an opt-out. Then the Secretary of State for Justice, Mr Straw, told the House that the Government had never wanted an opt-out.
	The Government also tried to strike down many provisions of the charter—for example, those relating to children's rights. Obviously the Government themselves at one point had real concerns. The Government originally argued that they wanted the charter not to be legally binding. On 11 December 2000, the Prime Minister said:
	"Our case is that it should not have legal status and we do not intend it to do so".—[Official Report, Commons, 11/12/00; col. 354.]
	Article 6(1) clearly states that the charter has legally binding status and, as my noble friend from the Front Bench emphasised, on exactly the same basis as the treaties.
	Much has been made of the point that the charter creates no new rights, but even if we accept that—and I shall come to it in a minute—it remains a point of anxiety that the responsibility of the European Court of Justice will be greatly increased. Until now, the court's role has been to interpret the treaties, directives and specific legislation. If the safeguards are not watertight, the ECJ's jurisdiction will be extended to other areas. The rights that are to be its concern are expressed in very general terms. That is where there is a clear risk of judge-made law expanding massively.
	Of concern to non-lawyers is accountability. One of the problems with the way in which the EU works is the one-way street of so much legislation and the difficulty of reversing it, because to do so one has to achieve unanimity. If a judge in this country makes law and the Government disagree with it, they can, if they have a majority and the willingness to do so, legislate to reverse that judgment and be accountable to the electorate for what they do. A different system operates in the EU. It is extremely difficult for judge-made law then to be reversed unless it is unanimously agreed by the 27 members of the Council.
	For that reason, it is extremely important to ask whether the safeguards that the Government obtained are really watertight. Nobody could criticise the Government for lack of effort or the number of elaborate devices—there are four safeguards in all. There is the protocol, particularly Title IV; there are the horizontal provisions, Title VII; there is the explanation of the origins of the rights that are included in the charter, which is, I regret, not in the Printed Paper Office; and there is Article 6 of the treaty, which explains how it does not expand the competencies of the Union. One's fear is that it may extend the competence not of the institutions but of the ECJ.
	Are all these devices effective? That the Government have resorted to no fewer than four—I know that this may seem a rather unfair point—and have gone to such ingenious, elaborate lengths to make the protocol watertight makes one rather doubtful of the assertion that the protocol was insignificant. My noble friend Lord Kingsland said that many academic lawyers had agreed with the opinion that the charter does not create new rights. I am certainly aware of many academic lawyers both in this country and abroad, including former commissioners and professors of law in European countries, who have doubted whether the safeguards in the legislation—the protocol that the Government have obtained—are watertight.
	My noble friend Lord Kingsland referred to Article 1.1 of the protocol. I do not want to read it out again, but I draw the Committee's attention to Article 1.2, which states:
	"In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland and the United Kingdom has provided for such rights in the its national law".
	This is repeated in Article 2, where the last words are,
	"to the extent that the rights or principles that it contains are recognised in the law ... of the United Kingdom".
	So there could be a situation where the ECJ would adjudicate on rights, as long as they were expressed in UK law.
	The Government have constantly returned to the theme—I am sure that we will hear it again—that the charter does not create new rights. As I said, perhaps that is not the only point. Vaguely and generally defined rights may easily become justiciable in a new way by a new institution. However, is it really true that the charter creates no new rights? The Commission's website states that the treaty of Lisbon protects,
	"existing rights while introducing new ones".
	Article 13 of the charter says that,
	"scientific research shall be free of constraint".
	That looks very much like a new right. The charter's explanatory notes, which describe the origin of all the charter's rights, confirm that that right is not recorded in any other treaty to which we are a party.
	The explanatory notes also buttress the claim that there are no new rights, but some sources from which these rights are said to be derived, such as the European Convention on Human Rights, are not treaties to which the UK has been a party, although obviously not the ECHR. For example, Articles 5 and 50 are derived from the Schengen agreement. Additionally, in some people's opinions, several articles deriving from the ECHR appear to have had their scopes considerably widened.
	Many other points could be made about the rights. Some seem more like welfare rights, such as the right to a free placement service, which reads rather curiously in a document of this kind. Others are extremely vague and general; for example, the respect for private life in Article 7 could easily be extended. I am not aware that we have a law of privacy in this country. I know that newspapers and their editors have been extremely concerned that we might get one by the back door, which appears to be made more likely by this provision—

Lord Lester of Herne Hill: I am not sure whether the noble Lord is aware of the difference between new rights against EU institutions and matters that affect UK law. To take the example of personal privacy, we are now given protection against invasions of our personal privacy by the EU institutions, but in our domestic law, that is already covered by Article 8 of the European Convention and the Human Rights Act 1998. One cannot confuse the two. I wonder whether the noble Lord is aware of the important difference between that which protects us against EU institutions under European Union law and that which protects us against British constitutional law, in terms of the right of privacy worded in identical terms in Article 8 of the convention and in the charter.

Lord Lamont of Lerwick: I am of course aware of the distinction made by the noble Lord and I am grateful for his intervention, which perhaps goes some way to answering the questions I raised about what is said in Article 7 about respect for private life.
	Another question concerns the provisions that appear to conflict with UK law. Perhaps the noble Lord will intervene on this one as well. One of the charter's provisions is that no one should be convicted for an offence of which he has already been acquitted. This point has already been raised. The Government have set about altering the rules on double jeopardy in certain cases.
	The more one looks at the charter in detail, the more one sees ways round the safeguards, which is why I begin to see why the Government have tried so hard in so many different ways with so many ingenuous devices to try to make it watertight, but I doubt whether it works. I also wonder why we need both this charter and the ECHR. One has a slight suspicion that the EU just wanted to have one as well. In the event of a conflict between the ruling of the ECJ and the European Court of Human Rights in Strasbourg, which one will have priority? I imagine that it will be the ECHR.
	In speaking to Amendment No. 87, my noble friend Lord Kingsland raised the question of whether, when the ECJ makes a ruling on the charter that is justiciable in another country, that ruling will apply to this country as well, because the charter will have to be applied through its incorporation into EU law as a decision concerning another country. When that point was raised in Committee in another place, the Minister, the Parliamentary Under-Secretary—admittedly she had very little time—replied by making two very simple points. First, she asked whether we were not all aware that the ECJ's decisions had been binding since 1957 and, secondly, she said that the charter created no new rights. Although those answers have the merit of being simple and direct, they are not actually an answer to the question raised. There is a way in which this could have been addressed: the protocol should have said that it has effect, regardless of other treaties or EU law. In that way, the protocol would have been much more likely to be watertight.
	I remain deeply sceptical. I raise these questions and await the Minister's reply but, because of all my doubts, I am strongly sympathetic to the first amendment, moved by my noble friend, that the charter should be struck out.

Lord Tomlinson: I shall very briefly intervene in this debate. The noble Lord, Lord Lamont, made only one point on which I wish to follow him because I fundamentally disagreed with everything else that he said. He raised the possibility of European Union accession to the European Convention on Human Rights. That is very much in the treaty. I have not followed the amendments through that far yet, but I would assume that Her Majesty's loyal Opposition are opposing that in the same way as they oppose everything else. Just in case they are not, I hope that they will join in the appeals that are being made universally, almost, to the Russian Government to get them to ratify protocol 14, which is the fundamental requirement in the Council of Europe for the accession of the European Union to the European convention to take place. Forty-six member states have so far ratified protocol 14; only one state has not. I hope that all noble Lords want to see that take place, as it will be a protection against some of the fears that they have expressed, which will be somewhat mitigated by the fact of European Union accession and binding itself to the judgments of the European court.
	To start back where the noble Lord, Lord Kingsland, began, he appeared singly uncomfortable in moving his amendment. I was somewhat surprised that he had to keep going through green-backed documents to find selective quotations from the Select Committee in another place. I wondered whether that was because of the quality of the reports from the Constitution Committee and the European Union Committee in this House. Those reports were much less easy to fillet appropriate quotations from that supported his argument. The quotations were not particularly helpful and he would have done much better to stick clearly to the words in the charter and, in particular, the very clear words in the protocol on the application of the Charter of Fundamental Rights to Poland and the United Kingdom.

Lord Kingsland: I am most grateful to the noble Lord for giving way with his customary generosity. I can answer his question very simply. It is in those documents that the Government most clearly set out their view of the charter. That is precisely why I used them because Mr Miliband and Mr Murphy both express in no uncertain terms their view about what the charter does. It was for that reason that I relied on those documents. You do not get the same statements in the House of Lords documents.

Lord Tomlinson: But you have infinitely better quality reports, which are argued with great cogency and clarity. When the report was presented to this House at the time of Second Reading it was universally welcomed by the House as being authoritative and a basis on which we ought to proceed when we looked at the whole question of ratification. I will give way but I promised to be brief and I do not want to be filibustered.

Lord Pearson of Rannoch: I have no intention of filibustering in these proceedings but the noble Lord must not say that the report of your Lordships' Select Committee was unanimously accepted in this House. Indeed, he may recall that I had a debate before the House rose in July, which pointed out the composition of your Lordships' Select Committee, which contains only one Eurosceptic. All the other members, including the chairman, are among the most ardent Europhiles in the House. It is scarcely surprising that this—

Baroness Ashton of Upholland: I hesitate to intervene but I do not wish the noble Lord accidentally to assume anything about the integrity of the individuals on the committee. His remarks could be interpreted to imply that because one is pro-European one might not look at things totally impartially. I am sure that is not what the noble Lord meant but I wanted to clarify that as anyone reading what he said might get that impression.

Lord Pearson of Rannoch: My noble friends on my left are saying that there is no possibility of my remarks being construed in that way. I was merely pointing out that your Lordships' Select Committee is almost wholly in favour of the project of European Union and of this treaty. Therefore, a number of us did not take its conclusions at all seriously.

Lord Tomlinson: Can I get back into this because I thought I had the Floor?

Lord Lester of Herne Hill: I remind the noble Lord that the chairman of the committee is the noble and learned Lord, Lord Mance, and that the chairman of the other committee was the noble and learned Lord, Lord Hope. Both are Law Lords and it is inappropriate to suggest that they are politically motivated.

Lord Pearson of Rannoch: I accept that. I was referring to your Lordships' Select Committee on the European Communities.

Lord Tomlinson: I am sure noble Lords will understand that I have almost forgotten what I was going to say. However, I can be persuaded back to the protocol that I was going to quote from. It has a clarity of language which everybody should accept as saying what it means and meaning what it says. We should not look for hidden elephant traps which are not really there. Article 1 states:
	"The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or actions of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms".
	That simplicity of language was devised so that people who are proud to profess themselves non-lawyers can understand it without the obfuscation that lawyers frequently introduce into the argument. Paragraph (2) of Article 1 has the same level of simplicity.
	All I want to say, in what would have been a very brief contribution were it not for multiple interventions, is that the Charter of Fundamental Rights is clear. It records existing rights. The charter sets out a list of the rights and freedoms that people already have and enjoy as EU citizens. In conclusion, I ask my noble friend to confirm one thing when she replies so that, as a humble non-lawyer, I can see whether my understanding might have some modicum of truth. Are the Government confident that a legally binding charter preserves the legal status quo in the United Kingdom? That is a simple question, capable of a "yes" or "no" answer. I look forward to her answer, which she can give with great brevity.

Lord Campbell of Alloway: I wish to ask a short question. Does the noble Lord appreciate that it is not a question of extending the jurisdiction of the ECJ? It has got it already. It has exercised it since Messina. Perhaps the noble Lord would exercise his mind to this and reply. I know of no circumstance in which that court has not interpreted and applied the reasoning of the European Court of Justice, so there is a composite judicial power which can be exercised and does not make the position watertight, which is against our interests.

Lord Tomlinson: I think that the question was: do I appreciate that? I appreciate the right of the noble Lord to interpret it that way. Do I appreciate it to the extent that I agree with it? The answer is emphatically "no".

Lord Waddington: The message seems to be that we do not have much to worry about, but that is inconsistent with the way in which the Government have worried and worried about this charter for years and years. It was not long after the remarks about the charter being no different from The Beano that the Government began to say that the charter was very dangerous and had to be resisted, not least because of its far-reaching social and employment ramifications.
	Then the Government said that because the charter was so dangerous, they could not possibly agree to it. They then said that if they were to agree to it, there would have to be a protocol to make sure that the charter would not damage Britain in the way that they thought it would damage others. That is the history of the matter and that is why I am slightly sceptical when people get up to tell us that there is nothing whatever to worry about.
	The wording of the protocol was referred to by the noble Lord who has just spoken. We have a protocol on Article 1 and the first paragraph contains very curious wording. It states:
	"The Charter does not extend the ability of the Court of Justice of the European union... to find [UK law] inconsistent"
	with the charter. It states that it does not extend the ability of the ECJ to do that. It does not say that the ECJ has no power to rule that the UK is inconsistent with the charter. No wonder the legal adviser to the Commons Scrutiny Committee stated:
	"I doubt if what appears to have been agreed secures this result"—
	that is, the result that the Government apparently intended. I want to make this simple point: it seems to me, and it clearly seems to others, that the protocol ensures that British people get the worst of all worlds.

Lord Tomlinson: Will the noble Lord, Lord Waddington, proceed to the second paragraph on Article 1 in the protocol. It states:
	"In particular, and for the avoidance of doubt, nothing in Title VI of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in national law".
	That really does answer the noble Lord's Aunt Sally—or, rather, it knocks it down.

Lord Waddington: I am not sure that the noble Lord is right, but perhaps I will be able to develop on that in a moment.

Lord Lamont of Lerwick: Does not my noble friend agree that what the noble Lord has just read out rather supports my noble friend's case? It says,
	"except in so far as Poland or the United Kingdom has provided for such rights".
	Where the United Kingdom has provided for such rights, there is a justiciable issue. The court is able to rule where the UK has provided for such rights in its own law—that is, the ECJ has jurisdiction over UK law. That is repeated in subsection (1) of Article 1 as well.

Lord Waddington: I am very grateful to my noble friend. One need say no more at this stage than that the wording is, to say the least, very curious, and it is highly doubtful whether it has the effect which the Government apparently thought that it would have. Certainly the legal adviser to the Commons Scrutiny Committee thought that it was completely ineffective to do that which the Government apparently intended. But why did the Government intend it in the first place? They could not possibly have taken the view that the charter creates no new rights because if that were the case, there would be no need for any fuss at all.
	The Government are accepting that the charter may produce new rights and that is why, if the protocol is effective, it ensures that British people get the worst of all worlds. British citizens cannot go to the European Court of Justice if they think their rights under the charter, such as their trade union rights, have been infringed. That surely follows from Article 1(2) of the protocol and Article 2. British citizens will be bound by the decisions of the court as a result of proceedings brought by citizens of other countries. Cases will be brought by the citizens of other countries, the European Court of Justice's interpretation of the charter will become part of European law and, as European law has primacy over our law, our courts will follow the European Court's ruling. That would be clear enough, even without the preamble to the protocol which stresses that this protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the treaty on the European Union, the treaty on the functioning of the European Union and Union law generally.
	I cannot for the life of me see how British people should applaud the Government for introducing this protocol because if any real new rights are created as a result of the charter, the British people are, by the action of this Government, barred from benefiting from them. According to the Commons European Select Committee, the only way of ensuring that the charter does not affect UK law in any way is to make it clear that the protocol takes effect, notwithstanding the treaties or Union law in general. Finally, why have the Government not taken the advice of that Commons Select Committee? If they had, they would not be in the mess which they are now clearly in.

Lord Pearson of Rannoch: In our previous proceedings, the noble Lord, Lord Owen, asked the very important question: what are the limits on the powers of the European Court of Justice? By way of answering that question, I shall put in your Lordships' Library a brief two-page article written by the well known constitutional lawyer, Mr Martin Howe, which shows that there are in fact no limits on the power of that court and therefore no limits on the way the court will eventually interpret the Charter of Fundamental Rights. For the purposes of this debate it might be worth putting on the record a few very short quotations from the court over the years which show how the court has advanced its own powers beyond the powers conferred in the treaties.
	Mr Howe makes the very important point that the feature which sets the European treaties apart from all other international treaties is that it is a system of law which penetrates inside the member states and takes precedence over the national laws in the domestic courts of the member states. It is that internal penetration of the treaty of Rome which sets it apart.
	One of the key points is that the treaty articles having direct effect inside the member states are not actually stated in the treaties. This was decided by the European Court in the Van Gend en Loos case in 1963, which has already been mentioned by the noble Lord, Lord Kingsland, in his opening remarks. It is worth citing the judgment in that case. The court said that,
	"this Treaty is more than an agreement which merely creates mutual obligations between the contracting states. This view is confirmed by the preamble to the Treaty which refers not only to governments but to peoples ... The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals".
	So in 1963, although the court is beginning to advance its jurisdiction. It does say that it is within limited fields. That will change, as we shall see.
	We then go on to the Costa v ENEL case in 1964, when the court said:
	"The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights".
	That is what the court said; it is not in the treaty. By 1970, in the Internazionale Handelsgessellschaft case the European Court declared its view that Community law should take precedence even over the constitutional laws of the member states, including basic entrenched laws guaranteeing fundamental rights.
	In 1987, in the Foto-Frost case, the court ruled that national courts had no power to question the validity of Community measures and reserved that power exclusively to itself, even though there was nothing in the treaty or in general principles of international law that would require states to recognise the validity of acts which are outside the powers conferred by the treaty. Judicial activism again.
	So the story goes on. In 1992, in the European Economic Area Agreement, the court made it clear that the objective of all the community treaties was to contribute together to make concrete progress towards European unity. It went so far as to say that the provisions of the treaty of Rome on free movement and competition, which is what that particular judgment was about, far from being an end in themselves,
	"are only a means for obtaining those objectives".
	By now, those objectives were to be enforced in "ever wider fields," no longer the limited fields that we had before.
	The story continues. In the 1998 Silhouette case, when the court dealt with trademarks and in the 1999 agrochemical case. I will not try the Committee's patience with quotations from those cases, but it all continues in the same direction.
	We come now to the recent tax cases. I asked the Minister at our last sitting whether the Lisbon treaty could lead to the harmonisation of direct tax. The treaty has been silent on direct tax, but refers to indirect tax. The answer is that the court is already there. It has already invaded corporation tax and invoked the general clauses of the treaty on non-discrimination to strike down national tax legislation. An important example is the 2002 Lankhorst-Hohorst case on tax credits on payments by a subsidiary to its parent company in a member state. I mentioned that in our previous proceedings; it denudes national treasuries of huge sums of money, although it is quite favoured by the finance directors of international companies.
	Then we come to the court setting up its own criminal areas, such as in 2005, with the environmental protection case. The court decided that the EU can specify and impose criminal offences and penalties in the very wide fields where the EC has existing competence. If that was right, the court had these powers over criminal law from the day the treaty of Rome was signed on 25 March 1957. Yet if anyone had said that in 1957, they would have been laughed at.
	As the noble Lord, Lord Kingsland, mentioned, we saw how the opt-out from the 48-hour week, which was negotiated at Maastricht, was circumvented because the Commission said that it did not come under social policy but under health and safety at work. The court agreed and the United Kingdom lost. In our previous proceedings I read out the resultant letter from Mr Major to Mr Santer complaining about what had happened.
	It does not help, therefore, if noble Lords say that there is nothing new in this. The process will go on as before. The court is free to interpret the treaties in the way it wants and nothing that is put in the treaty— certainly nothing in the charter—can be safely relied on. It will, I am afraid, be reinterpreted by the court to expand those powers ever further. I therefore support the amendment.

Lord Campbell of Alloway: Lord Denning made the point some time ago that anything that this court interpreted as within its jurisdiction—and he appreciated that it had created its own jurisdiction—was supranational law, to which we were subjected. This was an objective view from a great lawyer, and that is where we have got to today.

Lord Slynn of Hadley: I was a member of the European Court of Justice for 11 years. I declare that interest without the overwhelming sense of guilt or shame that one or two noble Lords appear to suggest I should feel. As has just been said, it is clearly right that in some areas the European court has developed important issues and principles and has created a structure for the Community which has been long established. It did not need a political motivation to interpret the treaty in those ways. The cases which have been cited with great skill—I was very happy to be reminded of them; I certainly could not have done it myself at this stage—were, however, all fully in compliance with the provisions of the treaty.
	It is inevitable that the European court will be involved in questions concerning the interpretation of the charter. This will include working out the relationships that have already been indicated between the charter and the European Convention on Human Rights and between the Luxembourg court—the European Court of Justice—and the European Court of Human Rights at Strasbourg.
	Regarding the decisions of the court in other areas, to suggest that if it comes to interpreting the charter the European Court of Justice is bound to run amok and do dreadful things is not borne out by the history of human rights. It is quite obvious that it was the European Court of Justice which introduced into the European Community the concept of fundamental rights. I believe that that has been to the great advantage of the European Union, not only the institutions but the states and their citizens over the years. In doing so, the court moved in a very moderate way, and here I am talking about the European Convention on Human Rights and the Protection of Fundamental Rights.
	It was not surprising that when the European Parliament and the Council of the European Community saw the way in which fundamental rights had been recognised as applying in the Community, although not specifically included in the treaties, they saw that they were necessary for the good health and working of those treaties. The European Parliament and the Council both expressed complete approval and full support for what had been done, and indicated that in the future, these fundamental rights must be regarded as part of European Community law. There was no criticism at that stage of the kind one now hears implied, that the court had got it all wrong in developing these fundamental principles. On the contrary, people accepted that what had been done was necessary and fully justified by the terms of the various treaties.
	As I have said, it is suggested that the European Court of Justice will run amok in some way, but let us look at what happened in the past when the court was developing these fundamental points, which were not expressed in the treaty and were not binding on the Community through the European Convention on Human Rights. The principles declared by the court were developed with what had been done in Strasbourg in mind. It was my experience that the court moved slowly in this regard because it was reluctant to take fundamental decisions on questions raised in cases before it where the Strasbourg court had not spoken, and where it had spoken, it was our practice to follow and apply as far as applicable in the Community the principles that Strasbourg had already laid down. I suggest that that attitude is likely to govern the approach of the European Court of Justice in dealing with fundamental rights issues in the future.
	Finally, it was suggested some years ago that there should be a reference procedure similar to that between national courts and the Luxembourg court by which that court could refer questions on interpretation of the convention—and now perhaps in the future—on interpretation of the charter to the Strasbourg court. It was not adopted at the time, although it was suggested by my predecessor as Advocate-General in the court, and I do not believe that it is necessary now. But if difficulties were to arise, this could be looked at again. It may be that the Strasbourg court could be consulted in some way by the Luxembourg court in terms of the interpretation of these various rights and non-rights as set out in the charter. That may be something that should be looked at again.
	All I suggest is that one should not be driven into a state of total fear and anxiety by the thought that the European court in Luxembourg may have, from time to time, to comment on the meaning or content of a particular fundamental right, and on the way in which it should be applied.

Lord Lea of Crondall: Perhaps I may ask the noble and learned Lord a further question; like other noble Lords, I have found his intervention extremely helpful. Some noble Lords have been adumbrating the theme of the European Court of Justice running amok. But is it not fair to say that that could not happen without redress?
	Perhaps I may give an analogy from UK history. In the trade union world, the most famous case of the past 100 to 150 years was the 1901 Taff Vale judgment which overturned what we had thought was the common law right to strike. Parliament, under the then Liberal Government, of course reversed that judgment in 1906 with the famous words about tort and no court taking action in contemplation of a trade dispute. By analogy with, let us say, competition law, if the European Court found that the existing law meant such and such but the Community institutions realised that that was not what they wanted to achieve, and if there was a wish to change the rules governing competition policy through treaty or a decision of the Council of Ministers and the European Parliament, then that would, ex hypothesi, be binding on the European Court of Justice. Does the noble and learned Lord believe that something along those lines would be a fair way of looking at the limitations on the powers of the European Court of Justice?

Lord Slynn of Hadley: As I understand it, certainly; once the court has spoken, the law is binding. However, through the co-decision procedure, it is always open to the Council—as it is to Parliament in this country—to change the law and the practice. That is what I have always understood democracy is about in this country. It is equally so in the European Union.

Lord Forsyth of Drumlean: Perhaps the noble and learned Lord could also help me; I found his speech very useful. I bear a scar because I was elected to Parliament and was a member of the Government who gave a manifesto commitment about implementing the Maastricht treaty and who secured the opt-out under the Social Chapter. I made many speeches and told people there was no possibility of the working time regulations being approved because we had a veto. However, the European Court decided that the regulations were a health and safety measure. That seemed an extraordinary decision in the face of the assurances given by the Government of the day and by elected Members. As this health and safety matter could be passed by a majority and could not be amended, we as Members of Parliament were unable to reverse it.
	I am nervous about the conduct of the European Court because of that experience. That experience is why the noble Lord, Lord Pearson of Rannoch, has expressed concern about the Court running amok. I would not go as far as saying that, but that experience is at the root of our anxiety and nervousness. Can the noble and learned Lord help me on this?

Lord Slynn of Hadley: During my time there I never had any feeling that my colleagues were driven by political motivation or that they were setting out to achieve anything that was not clearly and expressly covered by actual provisions of the treaty. I never had any ambition to create a new Europe all of my own or to develop principles that happened to be dear to me personally. I believe that we all looked at the wording of the articles of the various treaties and gave effect to it. Giving effect to it sometimes surprised people. People who had never read the treaty thought that it was just a Common Market treaty. They had not read the social provisions; they had not even read all the economic provisions to understand what was included in the treaty.
	I well understand that people react adversely to decisions of the Court. I have suffered from that not only in Luxembourg but, at different levels, in the courts of this country, including in the Judicial Committee of your Lordships' House, of which I am grateful to have had the opportunity of being a member. People sometimes resent the decisions of the Court. Noble Lords who read the press sufficiently will know that even the courts of this country are constantly being assailed by those who write about these matters. There will certainly be decisions in future that some people will not like. What is essential is that one should be sure that the Court is genuinely seeking to give effect to the provisions of the treaty. For my own part, in the light of my time there, and from following what it has been doing to some extent since, I am quite convinced that that has always been its intention and its wish.

Lord Pearson of Rannoch: Can the noble and learned Lord answer two questions, which arise from his eminent intervention? He said that the Court's powers are limited and that, although there is no appeal against the judgments as such, national parliaments and the Council and so on are free to revisit the judgments by going back, passing laws and reaching unanimity in the Council to reverse what the Court has said. Therefore, my first question is: can he give your Lordships any example of where that has happened since we joined the European Community in 1972, leaving out, I suggest, the Factortame case, where the United Kingdom Parliament attempted to reverse a treaty provision and a Court judgment, and failed? What examples are there of this theory in practice?
	Secondly, does the noble and learned Lord feel that anything that he said disagrees with the judgment of the Court that I read out? I shall read one sentence of it again:
	"Article 1 of the Single European Act makes it clear that the objective of all the Community treaties is to contribute together to making concrete progress towards European unity".
	The Court went on to say that the treaties are,
	"only a means for attaining those objectives",
	and that those objectives should be—

Lord Bach: Perhaps the noble Lord will give way. Of course, he is entitled to speak as often as he likes in Committee, but I hope that your Lordships will forgive me if I remind the Committee that we are still on the first amendment on a very important subject. We have a great deal to go through if we are to complete the Committee stage in the agreed time. I wonder whether the noble Lord and others—I am not picking on him—would mind directing their questions briefly to those who have already spoken so that they can be answered and we can move on. I hope that the Committee will forgive me but I think it is time that that was said.

Lord Pearson of Rannoch: I sympathise with the noble Lord's position but we are dealing with the powers of the Court of Justice, which are crucial to our membership of the European Union. We have had a very important and somewhat unexpected intervention from a former judge of that court. I had finished with my quotation and simply ask the noble and learned Lord whether anything that he said goes against that judgment of the Court—that it is there to make judgments in ever wider fields towards the construction of the unified Europe. What examples are there of when his theory has worked out in practice, and does he disagree with the judgments of the Court that I read out?

Lord Slynn of Hadley: In view of what has been said from the government Front Bench, I should like to keep both questions for a later amendment. Having looked at the amendments that have been tabled, there seem to be many opportunities for that to arise. However, briefly, the Court has said that the Community is moving to a state of greater unity, and if you read the treaty—even the first five or six articles—it is plain as a pikestaff that that is what it is required to do. The Court has on many occasions taken decisions in regard to the member states which are not popular but which have simply set out to achieve what the treaty is doing.

Lord Goodhart: I am delighted to follow the noble and learned Lord, Lord Slynn of Hadley. He has been a personal friend of mine for over 50 years and I greatly respect his judicial work. What he said today, he said with immense authority. I believe that he has far more authority to speak on this subject than any other Member of your Lordships' House. He has done that today to great effect.
	As I said at Second Reading on 1 April—a not entirely auspicious day—I believe that giving the charter legal status will serve a useful purpose. First, it fills in a black hole in the operation of human rights law in the European Union. Unlike the member states, the European Union is not bound by the European Convention on Human Rights, because that convention does not apply to acts of the European Union or its institutions. It applies only to acts that come within the member states, and the EU is obviously not a member state. While the ECJ can take into account the general principles of human rights recognised by the member states, there has until now been no clear definition of what those rights are. The charter of fundamental rights will provide not an ideal definition but certainly a considerably better one than we have now.
	The effect of the charter is both limited and modest. As stated in its preamble, the charter reaffirms rights and does not create them. Article 51.1 of the charter states:
	"The provisions of this Charter are addressed to ... the Union ... and to the Member States only when they are implementing Union law";
	while, as stated in Article 51.2, the charter
	"does not establish any new power or task for ... the Union".
	The charter does not apply to domestic law, as the European Union Committee of your Lordships' House makes clear in chapter 5, paragraph 60 of its extremely valuable and useful report.
	The charter is far narrower in scope than the ECHR or the Human Rights Act, which apply to all acts in exercise of public authority except for Parliament itself. It restricts the powers of the European Union and of its institutions. It enlarges the powers to challenge EU legislation or activities. I agree with the report of the Constitution Committee of your Lordships' House that,
	"the change in status ... from political document to having the force of a treaty would be less of a radical step than at first it may appear".
	Is the need for the charter of fundamental rights eliminated by the accession of the European Union to the ECHR? It is true that the charter and the ECHR have many similarities, and there is some risk that without a mechanism to solve this problem, the ECJ and the European Court of Human Rights may come to different interpretations of similar texts. For that and other reasons I would certainly welcome the accession of the EU to the ECHR, which would give the ultimate decision to the European Court of Human Rights if there was any divergence. As the report of the European Union Committee of your Lordships' House says in chapter 5, paragraph 118:
	"This would assist to avoid any risk of conflict between European Union law and the European Convention on Human Rights as interpreted in Strasbourg, by placing fundamental rights on a single consistent foundation throughout the EU".
	Article 1.8 of the Lisbon treaty requires the EU to accede to the European Convention on Human Rights. Unfortunately, that is not quite as simple as it sounds. Such accession requires a new protocol, currently the draft protocol 14, to be ratified by all member states of the Council of Europe. The draft protocol has in fact already been ratified by all member states except for one. Unfortunately that member state is Russia, and Russia's present attitude to the West makes it uncertain whether the protocol will be ratified in the near future. Perhaps the Conservatives, whose delegates to the Council of Europe sit in the same group as the Russians, might put some pressure on their colleagues to achieve that. The fact that there could well be a significant delay in the accession of the EU to the European Convention on Human Rights certainly strengthens the case for the charter, which reaches parts that the ECHR cannot reach. I do not see the charter as a threat to the United Kingdom or to our legal system. No doubt the charter could have been better—it is somewhat clumsy and sometimes long winded—but it is plainly a step in the right direction.
	The protocol on the application of the charter to the United Kingdom and Poland serves as a defence against largely imaginary threats. As the EU Committee pointed out in Chapter 5.87, the protocol is not an opt-out. I think that that is now generally accepted. It is a pleasantly short document among many long documents and states in its preamble that the charter does not create new rights or new principles. In Article 1, it states that the charter does not extend the present powers of the ECJ to rule that UK laws are inconsistent with the rights or principles of the charter. It also states, in Article 1.2, that the rights mentioned in Chapter 4 of the charter on social and economic rights are justiciable in the United Kingdom only so far as the United Kingdom has provided for justiciable rights in its own laws. It is almost certain that the social and economic rights in Chapter 4 of the charter are not justiciable in any event. However, if we are wrong on that, this protocol will prevent it. I disagree with what the noble Lord, Lord Waddington, said on that.
	The effect of Article 1.2 is to remove the binding effect in the United Kingdom of ECJ decisions on social and economic rights in relation to other countries. It is possible that the law on social and economic rights may therefore vary between the United Kingdom and/or Poland and other EU countries. What will not happen is that decisions in relation to, let us say, France would also apply to the United Kingdom if that would be contrary to the clearly expressed intention of Article 1.2. Article 2 states that, in application to the United Kingdom, references to national laws apply only to the extent that rightful principles in the charter are recognised in the law and practices of the UK.
	All the protocol does is emphasise and clarify the interpretation of the charter, which is already implicit in it. That was the broad view of the EU Committee, as set out in Chapter 5.103 of its report. There is no need or justification for any of the amendments in this group.

Lord Stoddart of Swindon: The debate so far has taken a direction which I had not anticipated. Until the noble Lord, Lord Goodhart, spoke it had concentrated mainly on the ability of the European Court of Justice to decide exactly what is and is not law. The noble Lord, Lord Goodhart, at least mentioned the charter—which it seems we are not going to discuss—the details of which are very important. The last time we discussed them was when we debated the treaty of Nice, although that treaty did not incorporate them in a judicial sense. The charter deserves a very close examination because some of its effects on British law will be very severe indeed. I will not go into all of them because we are clearly spending a great deal of time on this amendment. The noble Lord, Lord Bach, wants us to get on so I will try to do that.
	The noble Lord, Lord Campbell of Alloway, mentioned Lord Denning. As the debate has concentrated on the powers of the ECJ, it is worth referring to a speech that Lord Denning made in this House on 31 July 1986. I shall read this summary of that speech:
	"Acts of Parliament and decisions of our courts have been set aside and rendered invalid by decisions of the European Court, which is superior in all matters of EEC law not only to British Courts, including the House of Lords, but also to Parliament where their Acts past, present or future have been, can be and will be declared illegal by an overweening court sitting in a foreign capital. As we proceed with the completion of the internal market the powers and decisions of this supranational court will impinge more and more on every aspect of our national life, social, legal, political, business, labour, economic and, indeed, on our relations with countries in the rest of the world outside the EEC. Business and individuals will find themselves, unwittingly, breaking laws of which they have no knowledge and which have been made, not by their own Parliament in public, but by the institutions of the EEC meeting in private, probably after wheeling and dealing in secret".
	Those are not my words. I am not clever enough to deliver such a judgment as that, made by one of our most famous Law Lords. However, if we take his view as correct, as I am sure we will, he really put the matter in its true perspective. The European Court will eventually decide whether the Charter of Fundamental Rights will be justiciable in regard to this country. The noble Lord, Lord Pearson, referred to a number of cases where the European Court has decided matters in spite of what Parliament felt about it and had decided. He mentioned in particular the Factortame case, which really established the superiority of the European Court because it forced a British Government to reverse an Act of Parliament which it had made to protect the livelihoods of Scottish fishermen. It reversed the decision of Parliament and of the British Government to protect their own citizens or a section of their citizenship. The result was that Spanish fishermen were allowed open access to Scottish and of course British waters and the state had to pay, I believe, between £200 million and £300 million in compensation. That confirms where the power really lies.
	Before I sit down, perhaps I may read one or two quotations, if I can find them. The EU Commissioner Margot Wallström said:
	"The Charter will be binding for the European institutions, and also for Member States when they implement EU law, even if this will not apply to all of them".
	By the Government's own admission, 70 per cent of all legislation comes from Europe. Whatever they say, the charter will apply in a good many instances. Then there is the former EU justice Commissioner, Antonio Vittorino, who questioned the legal basis for the British opt-out from the Charter of Fundamental Rights and said that it would not work.
	I ask the Minister: what is the view of the European Commission? Has its view been sought? If not, why not, and will it be sought now? The Commission is an important part of this business and it would be useful to know whether it agrees that our opt-out is watertight. I very much doubt that it will. With that, I support the amendment and those that go with it.

Lord Forsyth of Drumlean: I was fascinated by what the noble and learned Lord, Lord Slynn, had to say and was sorry that his exchange with the noble Lord, Lord Pearson, was curtailed. The powers, role and behaviour of the European Court are central to all this. I think that the noble Lord took it as a criticism of the Court's behaviour, but I felt that the noble and learned Lord, Lord Slynn, was reinforcing some of the points made by the noble Lord, Lord Pearson. When he said that everything the Court had done was consistent with the treaties, that was precisely the point the noble Lord, Lord Pearson, was making. It was not consistent, however, with what those of us who are pro-Europeans—

Noble Lords: Oh.

Lord Forsyth of Drumlean: I notice some laughter from the Liberal Benches. They are so pro-European that they cannot think of a single amendment to put down for discussion in the consideration of this treaty. I voted yes, and have always supported Europe. One of the reasons I have been so opposed to the tendency towards centralisation in Europe is that I believe it will destroy the European project, because we will end up with an institution that does not carry political consent and where people are unable to make changes that affect their lives. That is what will destroy Europe, and those people who wish to hasten the process of federalism and integration are actually the enemies of the European ideal because they will destroy it. There is no monopoly of wisdom here.

Lord Hannay of Chiswick: I am grateful to the noble Lord for giving way. Having sat and listened to my noble and learned friend Lord Slynn, I did not draw the conclusion from his words that the noble Lord, Lord Forsyth, appears to have done, nor did I think that one single word that he said in any sense validated the fears that have been expressed about the Court of Justice. My noble and learned friend said that the Court applied the treaty. What on earth does the noble Lord, Lord Forsyth, think it would do otherwise? What does he think it was set up to do? Of course it applies the treaty. My noble and learned friend said clearly that in doing so it was not politically motivated but motivated by its position as legal minds set up under the treaty to apply it.

Lord Forsyth of Drumlean: I say to the noble Lord, Lord Hannay—I have to be careful about asperity of speech—that I thought the Court was doing what he and his former colleagues in the Foreign Office told us, when we were in government, that it was doing; that the Court would look at the terms of the treaty itself in the way that we in this Parliament are used to looking at the terms of the Bill. Instead, the Court has looked at the wider considerations, and the noble and learned Lord, Lord Slynn, pointed to that. The noble Lord, Lord Pearson, gave several examples—I do not want to detain the Committee by repeating them—of judgments that showed the Court taking the view that it was part of its role to promote a wider and closer European Union in interpreting specific areas of law. So I thought that the noble and learned Lord, Lord Slynn, was being supportive of the argument of the noble Lord, Lord Pearson.

Lord Lester of Herne Hill: Perhaps I may—

Lord Forsyth of Drumlean: I shall make this point and then I shall give way. The argument of the noble Lord, Lord Pearson, was that the Court was not behaving other than by looking at the acquis and the treaties and was doing something that was perhaps not anticipated by some of us. His concern in respect of the amendment is how we can have confidence that this process will not continue. That is the question that I should like the Minister to deal with. Like some of us who have been in government, she may find in the future that, having said things and given assurances on the basis of advice from officials and others, they turn out to be wrong because the European Court behaved in a particular way. That is my concern. I give way to the noble Lord.

Lord Lester of Herne Hill: I am grateful to the noble Lord, whose asperity I enjoy. Does the noble Lord agree that his party has always stood for the rule of law as a fundamental principle of Conservatism? Does he further agree that, within the European Union, we have a system founded on the rule of law and that we entrust to the European Court of Justice the ultimate responsibility for interpreting and applying the treaties in accordance with the rule of law? The question then is: who other than the European Court of Justice is to decide, for example, whether the principle of subsidiarity is breached? Who else would he have decide these important questions of law? Would it therefore not be better to support the European rule of law and the European Court of Justice instead of attacking them?

Lord Forsyth of Drumlean: The noble Lord is absolutely right—of course we support the rule of law. However, there is another principle that we support. I refer to the principle of democratic accountability. What the noble Lord is not taking account of is that, if we have the European Court taking a view that promotes a wider Europe—or a deeper Europe or whatever expression one wants to use—and deciding, for example, that working time is a health and safety matter, it should be possible for democratically elected politicians in the countries affected to reverse that. Unfortunately, it has become more and more difficult to do that, particularly as the veto has been eroded in more areas of national life. I know that the noble Lord is committed to Europe—if not always to the manifesto promises on Europe that have been made by his party. However, if one has an institution that makes laws that people cannot change when they turn out to be bad laws, that institution will come into conflict and will undermine respect for the rule of law. I believe that it is part of supporting the rule of law to have institutions that are democratically accountable. My concern about this treaty, and the reason I support the amendment of my noble friend on the Front Bench, is that we may be walking into yet more areas where laws are changed in ways that do not carry consent, where Parliament is unable to intervene and voters feel frustrated. I thought that the speech made by the noble Lord gave some weight to that. Perhaps the Minister will explain how it will be different this time.
	On TUPE, on working time and on a range of other things, we gave assurances that turned out not to be correct. I supported the Single European Act when I was Parliamentary Private Secretary to my noble and learned friend Lord Howe of Aberavon. I had doubts about it then. People argued that it would not be used to extend the competence of the Community. We were given assurances that this would not be the case, that it was the letter of the law that would matter and not the general spirit. So we feel "once bitten, twice shy". I hope that the Minister, in railroading this legislation through the House, does not find that she, too, is bitten. I hope that she can give us assurances about that. I shall give way briefly.

Lord Lea of Crondall: I am most grateful to the noble Lord for giving way. This is the third or fourth time, on the first and second day of Committee, that he has taken as his principal example the working time directive. That was introduced under the health and safety provisions of Article 118, which of course preceded the Maastricht treaty—it was not introduced under that treaty. He has repeated the travesty that we were given specific assurances that the Maastricht treaty opt-out meant goodbye to the working time directive. I do not accept that anybody in Brussels would agree that such specific undertakings about the effect of the Maastricht treaty were given. It confirms that the European Court of Justice was not influenced by any wider political considerations but just by the question of whether health was centrally tied up with long working hours, which it found to be the case. We should not cast any aspersions on the European Court of Justice by suggesting that it had any wider political or other motivation. I can well understand that the fact that the noble Lord's advice to the Prime Minister was wrong has got under his skin, but his history is woefully wrong.

Lord Forsyth of Drumlean: I shall try to deal very briefly with that. The Government may have been wrong, but we stood on a platform of maintaining workplace laws and conditions within the competence of the United Kingdom. The opt-out from the Social Chapter of the Maastricht treaty, which this Government gave away on being elected in 1997, was fought for hard, because there were concerns about the effects on competitiveness.
	The noble Lord was correct on the timing of the working time directive. The point that I was making was that we had a clearly defined policy; we assured people that it was possible to deliver it, because it was subject to qualified majority voting—under Article 118A, if I remember correctly, but it was a long time ago. That was then overturned, because the Commission reintroduced it as a health and safety measure, with the European Court holding that working time was a health and safety issue, thereby stretching the elastic beyond a point of breaking.
	That was a highly contentious and political decision, making it a matter that required unanimity in the Community and the Commission to bring it forward. It therefore became impossible for a democratically elected Government to deliver the policy in respect of working time on which they might have been elected. That was the point that I was trying to make, if perhaps not terribly expertly. I hope that the noble Lord now understands my concern about the role of the Court.
	In respect of the future, I am concerned that the Minister may be in the same boat in thinking that she has all these red lines and has secured the position, only to find that the Court will continue to behave as it has done from the beginning, which is to promote a wider and deeper Europe and stretch the elastic to breaking point. That may very well damage the European Union and the institutions to which I know the noble Lord is committed.

Baroness Ashton of Upholland: I want to intervene on the word "railroading", because I want it to be clear in Hansard that, before we determined the number of days in Committee, I consulted the Front Bench of the noble Lord's party and that of the Liberal Democrats. I consulted the noble Lords, Lord Stoddart, Lord Willoughby de Broke and Lord Hannay, as well as the noble and learned Lord, Lord Howe of Aberavon. I have had an open session at 1 pm every day that the Bill has been in Committee—I believe that that has been on the Whip of all the political parties and has been made known to the Cross Benches. At no point has anybody come to me and said that we have inappropriate time or are being railroaded. The noble Lord, Lord Stoddart, has made representations to me that, because of his concerns, we should try to finish at 10 pm every evening. There is no suggestion in that of railroading. I have listened with great care to all the representations and at no point has anybody put that to me. I hope that the noble Lord will accept that he has had ample opportunity to put his points to me in other ways.

Lord Forsyth of Drumlean: The Leader of the House is always extraordinarily accommodating, courteous and helpful in Committee. That has been my experience. My reference to railroading was about an intervention on the noble Lord, Lord Pearson, who has tabled a number of amendments to the Bill and who is putting across a point of view that I know the Government do not share. When the noble Lord, Lord Bach, intervened, the noble Lord, Lord Pearson, was making a very important point—it is not often that we have an opportunity to speak to someone who was at the European Court. I felt that, if we pressed on—perhaps people felt that enough time had gone by—an important issue would be railroaded. I apologise to the noble Baroness if she felt that that was a criticism of her general conduct in relation to the Bill, but the Front Bench was being a little bit unfair to the noble Lord, Lord Pearson, in trying to hurry him on when he was making an extremely important point.

Lord McIntosh of Haringey: Is there any space at all between filibustering and railroading?

Lord Wallace of Saltaire: If there are problems with having only six days, we on these Benches would be quite happy to extend until midnight from now on in order to make sure that we get this through. However, I hope that it may expedite discussion on later amendments—since we have extended from discussing the charter to the role of the Court of Justice as a whole—if I ask the Conservative Front Bench, when summing up, to spell out its view on the role of the Court. In this debate, we have heard a number of noble Lords objecting to the idea of any foreign court having jurisdiction over British law and any limitations on the British Parliament.
	The noble Lord, Lord Kingsland, will be aware that there is a parallel debate in the United States to the one that we are having in the United Kingdom on exactly this subject. Radical defenders of sovereignty—for example, Professor Alan Dershowitz at Harvard Law School, Justice Scalia on the US Supreme Court, the current Attorney-General, Alberto Gonzalez, and others —take the view that it is not possible to accept international law overriding US domestic law and that the expansion of international law, conventions and institutions cannot be allowed to affect the United States.
	That is much the same argument as we have been hearing from a number of noble Lords, including Members on the Conservative Front Bench, about the European Court of Justice. I would like the noble Lord, Lord Kingsland, to clarify whether he shares that view. In the United States, it has led to an argument that says, "We cannot accept further UN conventions, particularly those that involve such human rights issues as the protection of children". Leading on from that is the argument that the United States must reject the Geneva Convention and a whole host of other things, in defence of the sovereignty of the American constitution and the US Congress.
	That is a similar argument to the one advanced by some noble Lords and which will no doubt be repeated on future amendments when we get down to the role of the ECJ in general. It would be helpful if the Conservative Front Bench would spell out whether it shares this view or has a rather more nuanced one. In a world that is increasingly globalised, we have to share sovereignty both regionally and globally. It is convenient on occasions to negotiate agreements within a European Union in which we share sovereignty with a rather smaller number of Governments of rather more like mind. There are positive aspects to that.

Baroness Ashton of Upholland: This has been an interesting and diverse debate. I am not entirely surprised to find that it ranged so widely across many of the issues. I say again to noble Lords that any interventions from the Front Bench have been to be helpful in reminding ourselves how much time we have and how much more we want to discuss. I have no fears about the ability of the noble Lord, Lord Pearson of Rannoch, to listen with great care to what is said by any of us on the Front Bench and then to make his own decision about whether he will continue to speak.
	When I first started to talk to noble Lords about how we might construct our debates on the EU treaty, I proposed that we try to find a way of having a big debate on the European Court of Justice, as I knew that it would figure largely in debates on a number of occasions and I wanted, as far as possible, to be able to gather the main players in that, not least the noble and learned Lord, Lord Slynn, to inform us in our work.
	I know that on the Conservative Front Bench there was a real desire, which I completely understand, to look at the issues line by line in the treaty. That is a completely reasonable way in which to approach it, but I am a little sorry that that did not allow us the opportunity to have what I would have enjoyed—a much longer, more detailed debate on the European Court of Justice. Some noble Lords may blanch at the idea of a longer and more detailed debate, but it is important to have that debate, not least because of the varying views that are expressed about the Court's relevance, how it works, and the appropriateness of its judgments.
	I am very grateful to those who have participated. I shall take us through the amendments and deal with the issues that noble Lords have raised. I begin where several noble Lords began, with what we want to say about the rights in the charter. I agree with those noble Lords who have assured the Committee that the rights are not new; they already bind the UK and all the member states, whenever we implement European Union law.
	I made some promises about whom I would quote, which I may have to stretch to answer one of the points that has been made. However, I shall try to restrict myself to Members of this House or another place or to that which is contained in the documents and reports of either House. My noble and learned friend Lord Goldsmith, who cannot be here today, made a speech to the British Institute of International and Comparative Law in January. Noble Lords will recall that he played a terribly important part in negotiations around the charter. I hope that we will have the opportunity at some point before we finish our deliberations on this treaty to hear from him. However, my quotation from him in a sense answers the question that the noble Lord, Lord Kingsland, raised about why we should have the charter. He said that,
	"the Charter performs the valuable function of providing a clear, accessible statement of the rights and obligations which create limits on the EU's powers to legislate and to act. The Charter will not impose new obligations on Member States. It will not create new rights. As the Charter reflects only existing rights, the underlying rights will continue to have effect in the UK, as in all Member States, as they always have done".
	If we question the whole principle of the charter, we question those underlying rights, which the charter simply reports. Bringing existing rights together in one place makes clearer to citizens the rights that they can expect the EU institutions to respect, as member states already do when they implement EU law. The noble Lord, Lord Lester of Herne Hill, made that point in his contribution. In agreeing to make the charter binding, the UK insisted on a package of safeguards to provide greater legal clarity to define the scope of the obligations that a binding charter would place on the Union and the member states. These safeguards include improved charter general articles, improved explanations to the charter, an upfront reference to the charter in the Lisbon treaty and the UK-Polish protocol on the charter.
	The noble Lord, Lord Lamont, rightly talked about the journey that the UK Government have made in their concerns about the charter. Our concern was that, drafted as a political declaration, it would be insufficiently precise and detailed to be made legally binding. When we negotiated around the now dead constitutional treaty, we secured improvements to the general provisions in the charter. We also secured agreement that the courts should take due regard of a detailed commentary on the charter—in other words, the explanations that identify the precise source of each charter right, a copy of which I would be very happy to give to the noble Lord, if that would be of use to him. While the Government were satisfied with the package secured in the constitutional treaty, we wanted to address continuing concerns about the effect of the charter on national law, so we also secured a legally binding protocol, making it clear how the charter is to be applied.
	There are three key safeguards to ensure that a legally binding charter simply maintains the existing legal position. There are the detailed general provisions in the charter itself, which set out the limits on how it is to be applied. These are reiterated in Article 6.2 of the treaty. There is a binding reference in Article 6.2, requiring due regard to be had to the explanations. These are also published in the charter, in the Official Journal. There is also a protocol to the treaty, setting out that the charter is to apply to the UK and Poland; this is not an opt-out but a legally binding guarantee as to how the charter is to be interpreted and applied. In particular, Article 1.1 in the protocol says that it does not create new justiciable rights and, under Article 1.2, charter rights that refer to national law are limited to those rights as defined in national law. I say to the noble Lord, Lord Kingsland, that Article 1.2 makes it particularly clear that solidarity rights—Chapter 4 of the charter—do not establish rights that do not exist in national law. This chapter, which also covers the right to strike, was of particular political concern. It does not in any way undermine existing rights.
	The charter's general articles set out and limit the scope and application of the charter. They make it clear that the charter is addressed primarily to the Union institutions and affects member states only to the extent that they implement European Union law. They also clarify that the charter does not extend the powers of the Union or give it any new power or task.
	The charter's general provisions, and the explanations, make it clear that the rights in the charter sourced from the European Convention on Human Rights and EU law must be interpreted and applied in the same way as they are in their source instruments; that is, from where they come. The charter cannot be used to extend existing rights. As noble Lords who have read them will know, the explanations also set out the difference between enforceable rights in the charter and principles, which guide the actions of the Union's institutions and the member states when implementing Union law but are justiciable only in the interpretation of such actions.
	Treaty of Lisbon Article 1.8, which replaces Article 6, will provide the key safeguards in the text of the treaties. The article provides that,
	"the Charter shall not extend in any way the competences of the Union as defined in the Treaties",
	that the charter provisions must be interpreted in accordance with the charter's general articles and that "due regard" must be given to the revised charter explanations.
	In addition, as I indicated, the UK secured a legally binding protocol to the charter. The UK's position has always been that the charter sets out existing rights. It does not create any new rights and does not extend the powers of the courts. Where, as in many cases, charter rights are based on national laws and practices, they must mirror the extent and content of those national provisions. The protocol's intention therefore is simply to confirm these points for the UK—to put it down in black and white for all to see.
	The protocol has the same legal force as the treaties and is very clear. No court, including the European Court of Justice, can ignore it or strike it down. It confirms that the charter does not create any greater rights than already apply in EU law and does not extend the powers of any court—European or domestic—to strike down UK laws. It also guarantees that, to the extent that the charter refers to national laws and practices, it applies in the UK only to the extent that the rights or principles concerned are recognised in the laws and practices of the UK.
	All these legal safeguards, including the protocol, will ensure that the charter does what it was intended to do, which is to record the existing rights, freedoms and principles that apply in the Union. As has been said, the European Union Committee report states clearly that the committee,
	"expect the effect of the change in the charter's status to be limited".
	There is no question of UK citizens having fewer rights than other EU citizens due to the UK protocol. That is because the charter creates no new enforceable rights. The existing rights and principles recorded in the charter will continue to have effect as they always have done on EU institutions and member states when implementing EU law.
	Amendments Nos. 87, 87A and 88 relate to the UK protocol to the charter that I have described. The amendments would remove three non-binding interpretative paragraphs in the preamble to the UK protocol to the charter. Noble Lords involved in legal matters—

Lord Campbell of Alloway: I apologise and thank the noble Baroness for giving way. This is a very short point. It is not a question of striking down English law; the problem is that, given the jurisdiction of that Court—for example, as regards strikes—if it assumes jurisdiction and makes a decision giving health reasons or whatever, we cannot do anything about it. We cannot strike down its law. As far as we are concerned, it assumes a jurisdiction that we, as a democratic country, cannot do anything about. It is total deference, not a striking down.

Baroness Ashton of Upholland: I thought that the noble Lord had sat down and I did not catch his last sentence. It is not right to say that the court can assume jurisdiction. The European Court of Justice's role is to look at and interpret how the institutions of the European Union are interpreting the law and make sure that the law in each country is relevant, appropriate and put into practice properly. The UK Government have for many years supported the role of the European Court of Justice in doing that. If you wish to make law stick across member states, it is important for there to be a legal body that can determine that that law has been put into practice properly. That has been the tradition of this country for hundreds and thousands of years. It is very important.
	Noble Lords may not always like the decisions and judgments of European courts—indeed, on occasion they dislike the decisions of the domestic courts. None the less, I have stated the purpose of the courts. Therefore, I contest the idea that the role of the European Court of Justice is somehow to land grab by making decisions in the way that has been described.
	The noble Lord who raised the issue of health is, in a sense, referring to the working time directive and I will make comment on that shortly. It is about making sure that the interpretation of the law in terms of where that principle sits is correct and proper. But when one looks at the charter and the list of where all of the articles come from and where they are grounded—whether it is in the European Convention on Human Rights—

Lord Lamont of Lerwick: The noble Baroness said that all the articles can be traced. Where does Article 13 of the charter come from?

Baroness Ashton of Upholland: I can tell the noble Lord where every single article comes from. I am very happy to provide that information, because it is incredibly useful. For those noble Lords who do not have it in front of them, Article 13 is on freedom of the arts and sciences. It states:
	"The arts and scientific research shall be free of constraint. Academic freedom shall be respected".
	It derives from Article 10 of the European Convention on Human Rights, which is already part of EU law and is the same as that article.
	The noble Lord specifically asked about the genesis of Article 7 on:
	"Respect for private and family life".
	In a sense, the noble Lord, Lord Lester, dealt with that when he said that it was part of Article 8 of the European Convention on Human Rights and is, therefore, already part of EU law. The noble Lord asked me about Article 29 on:
	"The right of access to placement services".
	In this context, it is a principle to guide the EU institutions when they legislate. It is not an enforceable right. We continue to determine our own placement services.
	If noble Lords would find it helpful, I would be more than happy to provide more detail, because it might help to assuage some of their concerns. We have tried to put as much as we can in the Library of the House, but I am always conscious that I should not overload noble Lords. We will make sure that we provide that detail as soon as possible.
	Amendment No. 89 seeks to remove the additional protection for UK social and labour laws from the UK protocol to the charter. Ensuring that the UK's labour and social legislation was protected was, and remains, a UK "red line". The charter protocol guarantees that the charter cannot be used to undermine existing UK laws—in particular, but not exclusively, economic and social legislation. To those who have been concerned about the potential impact of a binding charter on UK law, it is right to say that the social and labour rights in the charter have been the principal source of concern.
	I can reassure the House that this concern is not justified, as all the social and labour provisions in Title IV of the charter are either existing rights in UK law, are tied back to national law, or are guiding principles—for example, the one on placement services—rather than rights. Rights cannot, therefore, be created, except in so far as they are provided for in national law. A specific reference to Title IV helps to clarify the existing position on those provisions. Perhaps I may quote my noble and learned friend Lord Goldsmith from the same lecture to which I have referred. He said:
	"As all the provisions in this Title [Title IV] are either existing rights in UK law, tied back to national law or are guiding principles, it clearly follows that they cannot create rights except in so far as they are provided for in national law."
	However, he continued,
	"sometimes, as we all know, it is necessary for reasons of clarity and reassurance to reiterate points provided for elsewhere".
	So although UK social and labour laws are protected, we do not reduce the level of protection enjoyed by UK workers. I could go on, but I will not, to talk about the importance of social rights and the benefits of parental leave, European work councils and the rights for part-time workers that I believe are so essential to providing the right framework for the people in our workforce.
	Amendment No. 117 aims to prevent domestic courts recognising the legal status or to take account of any proceedings in courts outside the UK based on the charter. Amendment No. 118 adds from the noble Lords, Lord Pearson of Rannoch, Lord Willoughby de Broke, and Lord Stoddart, a further sentence—namely that the word "notwithstanding" be added at the start. There is an intellectual legal difficulty with Amendment No. 117. It runs against, I would argue, the whole scheme of the 1972 Act, which is the mechanism by which European law is implemented in the UK, because it prevents the charter having effect.
	I am putting forward a very simple proposition. The UK is a member of the European Union and, as such, bound to implement EU law. Members of the Committee may not like that and may wish us elsewhere, but while we are a member of the European Union, we are bound to implement EU law. I think noble Lords know that we derive great benefit from that. It is right that the fundamental rights, freedoms and principles that are recognised in the charter apply across the whole field, binding the Union institutions and the member states when they are implementing Union law. Accepting the amendment would mean that the courts could not take account of the charter and that the UK could not ratify the Lisbon treaty.
	Let me answer as many of the specific points as I can. The noble Lord, Lord Stoddart, asked whether we had consulted the Commission on the UK charter protocol. The protocol forms an integral part of the treaties—primary EU law agreed by the member states—and the Commission is a creature of the treaties so it does not have any free-standing right to rule on what is set out in the treaties. The only way of answering the noble Lord, Lord Stoddart, is to break my own promise about not quoting people. The noble Lord, Lord Howell, will have to forgive me—I will try not to do this again but I cannot think of another way of doing it. On the "Today" programme, Mr Barroso described what he believes to be the case on behalf of the Commission. He said:
	"I think the deal done by Britain was very clear in keeping the role of the British courts and I think there are no dangers of revision of the conditions negotiated by Britain through ... the jurisdiction of Brussels".
	That is as close as I can get to giving the noble Lord what he seeks. Bearing in mind what I have said, it would be inappropriate, at best, to formally consult a creature of the treaties about the role of the treaties.
	The noble Lord, Lord Kingsland, and other Members of the Committee asked about whether the European Court of Justice in Luxemburg or the Court of Human Rights in Strasbourg has priority. The charter does not change the position. The European Court of Justice will be able to decide how fundamental rights apply in European Union law. That is what it does now. The Court of Human Rights will have the final say about the meaning of the rights in the European Court of Human Rights. So EU law has the European Court of Justice as its final arbiter and the European Court of Human Rights in Strasbourg has the final say on human rights, as is the position now. Nothing has changed.
	The noble Lord, Lord Kingsland, also said—

Lord Lester of Herne Hill: I wonder whether I am right in saying that recently in the Bosphorus airline case the Strasbourg court made it clear that it will do its best to make sure that there are no conflicts between the two courts and that both courts in their recent case law have done their best to ensure that there will be no conflicts.

Baroness Ashton of Upholland: The noble Lord is right and, of course, knows far more about the workings of the court than I could ever dream of. I, like the noble Lord, Lord Lamont, am not a lawyer and it shows in my case more often.
	The noble Lord, Lord Kingsland, asked me about litigants who do not agree with what the European Court of Justice says about fundamental rights being able to open the case. They already can—again, no change is suggested.
	The noble Lords, Lord Lamont and Lord Kingsland, asked what mechanisms or timetable are in place for our EU accession to the European Court of Human Rights. I take the point that was made by my noble friend and by the noble Lord, Lord Goodhart, about the role of Russia in the ratification in Protocol 14. Article 6(2) of the EU treaty provides for the Union to accede to the ECHR but it does not give any timetable. The protocol to the treaty says an agreement on accession must include provisions on EU participation in the ECHR control mechanisms—for example, the Council of Ministers—and the mechanisms that determine which member states should be involved in these cases. If someone wants to take a case to Strasbourg, who do they litigate against—the EU or member states? It also says that the accession must not affect competence, and that individual derogations and reservations held by member states must not be affected. So any derogations that we have will be respected. No decision can be taken on any accession agreement until after the entry into force of the Lisbon treaty and any decision must be taken by unanimity in the Council of Europe and in the European Union. That is as much information as I am able to give on that.
	The noble Lord, Lord Lamont, asked me about Article 50 in the treaty—double jeopardy, or ne bis in idem in Latin. Article 50 is about the right not to be tried twice in criminal proceedings for the same criminal offence. The European Court of Justice confirmed this right as a general principle of EC law in 2002 but a case can be reopened if new evidence appears. Article 4 of the ECHR's Protocol 7 says—and UK law reflects this—that:
	"The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case".
	I shall end with another quote from my noble and learned friend Lord Goldsmith. The charter I have described will ensure the charter does what it is intended to do. He said:
	"We should put aside the hyperbole and welcome the Charter for what it is—a clear, accessible statement of our rights and of the limits on the EU's powers to legislate. The Charter will not impose new obligations on Member States. It will not create new rights. The Charter instead provides a clear and valuable statement of the rights, freedoms and principles which the Union's institutions should respect".
	I hope the noble Lords will withdraw their amendments.

Lord Kingsland: I am most grateful to all noble Lords who have contributed to this remarkable debate on the charter. I think all noble Lords will agree it has been greatly enriched by the contribution of the noble and learned Lord, Lord Slynn, who sat for many years as a judge in the court and who brings that unique experience to our deliberations.
	I was asked a question by the noble Lord, Lord Wallace of Saltaire, from the Liberal Front Bench about what the Opposition's policy is towards the European Court of Justice generally and the issue of sovereignty in particular. He may be disappointed to know that although the Opposition Front Bench has many robust policies on a wide range of political matters, it has not yet got a policy on sovereignty and the powers of the European Court of Justice. However, in a personal capacity, I will try and respond, telegraphically, to his question.
	It is important not to confuse two concepts of sovereignty. One concept of sovereignty—a concept in public international law—is about the relationship between one nation state and another. Year in, year out, the United Kingdom signs many international treaties and almost invariably the consequence of the signature and subsequent ratification of an international treaty is some constraint on the sovereignty of the British state to operate internationally. A very good example is the recent convention on torture. I cannot imagine that anybody of any political party would wish to remove that power from a nation state in international society. There, I think, there would be no difference between myself and the noble Lord, Lord Wallace.
	However, the issue of sovereignty that this debate raises is not the issue in public international law but the issue in domestic constitutional law, which is an entirely separate concern. Here, the point has been well made by several noble Lords from whatever point of the political compass they have been travelling. Of course, when we joined the European Community, the great cases of Van Gend en Loos, Costa and ENEL were already decided. Before we entered the Community in 1972, it was clear that European Community law had the last word on matters that fell within the terms of the treaty. The concern that has grown during the past 20 years is the scope and outreach, as the Americans say, of the powers exercisable under the treaty. It is not the principle, it is the scale that has provided the problem.
	My noble friend Lord Forsyth got to the root of that problem. The Community has been extremely successful in developing the rule of law; it has been extremely weak in developing a parallel concept of democracy. The speed with which the rule of law has travelled over a wider and wider range of issues and the failure of democracy to keep up with it is the fundamental weakness of the Community. As my noble friend and many other noble Lords have said, once a law is on the statute book in the European Community, it is almost impossible to reverse it—unlike the situation domestically where, if one does not like a decision of the Appellate Committee of your Lordships' House, the new Parliament can change the law and reverse it. That is almost impossible, and certainly almost inconceivable now in a European Community of 27 states. That is why there is so much concern about the charter and whether the protocol is really watertight.
	I heard what the noble Baroness said about the efforts of the noble and learned Lord, Lord Goldsmith, and I salute those efforts; but I cannot help thinking that he would have been much better instructed by the Government to use his energies to get the Community to adhere to the European Convention on Human Rights rather than to invent an entirely new Charter of Fundamental Rights which, in my view, is otiose.
	I think that it is clear—I certainly accept—that the charter does not create new rights or new competencies. I am also convinced that it cannot be used to expand existing rights; but those are not the problems that our amendments raise. They raise the problem that there is nothing to prevent a new interpretation of existing rights in the context of the charter which had their origin in the European Community changing the effect of existing law in this country. That is our concern. I am not yet convinced from what I have heard from the noble Baroness that the Government have got the wording of the protocol right. That is precisely why we have tabled our amendments.
	I am most grateful to the noble Baroness for her reply. It did not convince me. I shall take the amendments away and reconsider the matter, but she can be confident that I am likely to return to them on Report. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral: moved Amendment No. 8:
	Clause 2, page 1, line 12, after "excluding" insert—
	"(i) Article 1, paragraph 15, inserted Article 9A TEU, first paragraph, first sentence, the words "and budgetary";(ii) Article 1, paragraph 17, inserted Article 9C TEU, first paragraph, first sentence, the words "and budgetary"; and(ii) "

Lord Hunt of Wirral: Since I became involved in the issue of European unity when I became a member of the European Movement in the 1960s, looking back over those 40 years, one of the clouds that has hung over my vision of a peaceful and prosperous Europe has been the European Commission's handling of its financial accounting. I hope that in this debate we will focus on the budgetary affairs and the new procedures, which have been outlined, and examine how they could improve or make more complicated the structure within which the European Union will operate.
	Noble Lords will know that the budgetary affairs of the European Union are a source of considerable concern to the people of this country, to the Government, I know, to many of us and to the European Union's own Court of Auditors. In November last year, the European Court of Auditors refused to sign off the EU's annual accounts for the 13th year in a row. It found that material errors had affected between 60 and 85 per cent of the European Union's entire budget for 2006.
	Aside from the apparently deep-seated problems of mismanagement and alleged fraud in the budget's implementation, there is also the whole question of the misallocation of resources. The common agricultural policy still represents about 40 per cent of all European Union expenditure. Despite all the talk of reform, the specific elements of the CAP that can distort market conditions continue to represent about a third of all European Union expenditure. The Government themselves and many Members of the European Parliament participating in this debate have always made it clear that EU spending needs real and fundamental reform. Of course it does, but how best should we proceed? Despite all the talk of reform, we do not appear to have made the progress that many of us had hoped for.
	In Global Europe, which was published last October and which bore the signatures of the Prime Minister and the Foreign Secretary, they said:
	"The current EU budget does not equip the EU to meet the challenges of globalisation".
	They continued,
	"it is essential that resources are used more effectively ... We must recognise the limits to EU budgetary intervention. Expenditure is just one of a number of policy levers, alongside coordination, sharing best practice, and legislation or regulation".
	They reminded us:
	"The CAP remains the most visible and expensive common policy of the EU, but it distorts the Single Market, hampers innovation, and is increasingly out of step with the need for Europe to respond to the challenges of globalisation. Internationally, it continues to attract criticism, creates tensions in the EU's relations with trading partners, and imposes significant costs on developing countries. Domestically, it imposes substantial costs on consumers and taxpayers and is inefficient in delivering support to farmers and promoting an attractive rural environment. Indeed",
	the Government concluded,
	"much of the CAP still has a negative impact on the environment".
	So we have heard all those ambitions of the Government. They want to change the European Union budget so that it is fit for the 21st century. They want to restructure the budget so that less is spent subsidising agricultural production and more is spent on scientific and technological research and development. The Government also always stress that they want to ensure financial discipline in the use of money under the EU budget.
	Against that background, perhaps we can pause for a moment and judge what the Government are presenting to us. It is difficult to understand why the Government have agreed to a measure, which we are being asked to ratify, that transfers so much control over the European budget away from the Council of Ministers to the European Parliament. In this treaty they are also presenting us with a complicated structure that I do not think will produce the financial discipline that we all seek. That is why I am moving this amendment. It seeks to exclude from ratification the new overarching provisions of the Lisbon treaty that refer to the European Parliament's budgetary power.
	The biggest change to specific budgetary procedures comes in the replacement Article 272 in what is currently called the Treaty establishing the European Community but which will be known as the Treaty on the functioning of the European Union if the Lisbon treaty enters into force. This deals with the procedure for drafting and adopting the annual EU budget. Let us remind ourselves of the existing procedure, which many of us find rather unsatisfactory. The current Treaty establishing the European Community makes a distinction between EU expenditure that is defined as compulsory under the EU treaties and expenditure that is not compulsory. Non-compulsory expenditure represents around 60 per cent of the total EU budget and compulsory expenditure around 40 per cent. Compulsory expenditure is effectively the common agricultural policy. Non-compulsory expenditure is just about anything that is not agriculture.
	Under the current Article 272, the European Parliament can propose what the treaty calls "modifications" to expenditure that is defined as compulsory under the treaties. On the other hand, it can propose what the article calls "amendments" to expenditure that is defined as non-compulsory. The Council can reject the European Parliament's modifications to compulsory expenditure and the European Parliament cannot reinstate them when the revised budget is sent back from the Council to the Parliament for final adoption. On the other hand, acting by a majority of its component members and three-fifths of the votes cast, the European Parliament can overturn alterations to amendments the Parliament wanted in areas of non-compulsory expenditure. The EU budget is then finally adopted.
	In other words, at present the European Parliament has the final say over non-compulsory expenditure whereas the Council has the final say over compulsory expenditure. However, under Article 272, the European Parliament does have the power to veto the entire budget and ask the Commission to restart the whole process from scratch with a new proposed budget, exercising what has come to be called the nuclear option.
	What do the Government find wrong with this existing procedure? Under the new provisions we will move to replacement Article 272, where there is no distinction at all made between compulsory and non-compulsory expenditure in the EU budget. The European Parliament will therefore be able to propose amendments to anything in the budget, including to what used to be called compulsory expenditure, which means the common agricultural policy. If the Council does not agree in the first instance on the European Parliament's amendments there is then formed something called a conciliation committee. In this committee the Council and representatives of the European Parliament have to agree a joint text of the budget. If they do not, the whole budget falls and the Commission must then present another draft budget. Both institutions, therefore, get a new power to block amendments to areas of the budget that they do not have the final say on in the current treaty. The Council is able to block amendments that the Parliament wants in relation to non-compulsory expenditure and the Parliament is now able to block changes that the Council wants over compulsory expenditure.
	All else being equal, I thought at first sight that this would seem to be a better deal for the Council as currently non-compulsory expenditure is a greater share of the overall budget. However, the new budget procedure contains other changes that make it easier for the European Parliament to assert its wishes over the Council. The representatives of the European Parliament in the conciliation committee act by a simple majority. This is in contrast to the current treaty provisions under which the European Parliament has to vote by a majority of all its members and three-fifths of the votes cast to overturn Council changes to the Parliament's amendments to non-compulsory expenditure. Therefore the Lisbon treaty makes it easier for the Parliament to block Council wishes in what would now be termed non-compulsory expenditure. By contrast, under the current treaty, the council votes by qualified majority voting to overturn European Parliament changes to compulsory expenditure. Under the Lisbon treaty's new provisions, it continues to vote by QMV in the conciliation committee.
	My conclusion, therefore, is that the Lisbon treaty does not make it easier for the Council to overturn the European Parliament. The Lisbon treaty's procedure following the conciliation committee is also very significant. If the representatives of the European Parliament and the Council reach agreement in the conciliation committee, their budget agreement still has to be approved by the respective full institutions. It is here that the Lisbon treaty's empowerment of the European Parliament in relation to the Council is at its most apparent. If the European Parliament rejects the budget, acting by a majority of its component members, the whole budget falls and the process has to start again from scratch. This is equivalent to the nuclear option the European Parliament currently has under Article 272.8 of the TEC.
	The Lisbon treaty makes it easier for the European Parliament to exercise this power. This is because the current treaty says the Parliament has to command the majority of its component members and three-fifths of the votes cast to invoke this veto. The Lisbon treaty's replacement article requires the Parliament to vote only by a majority of its component members. On the other hand, if the Council rejects the budget but the European Parliament approves it, the budget will be finally adopted on the basis of the joint budget produced by the conciliation committee. On top of this, however, if the European Parliament votes by a majority of its component members and three-fifths of the votes cast, it can insert any of the amendments to any part of the budget it made prior to the conciliation committee.
	In summary, if the European Parliament and the Council ultimately disagree on the budget and the Council does not wish the budget to be adopted, the Lisbon treaty allows the European Parliament to assert its preferences over the entire budget, which will then be adopted. Under the current treaty Parliament can finally overrule the Council only in areas of non-compulsory expenditure, which does not include the CAP. So the Lisbon treaty also makes it easier as well for the European Parliament to veto the entire budget, frustrating the wishes of the Council.
	So where are we? I think that we are facing what will undoubtedly become a much bigger European Union budget overall. As the history of European Parliament decisions shows, it tends to be the biggest spender of all the EU institutions, and typically it does its best to reverse limitations on spending introduced by the Council. One has only to look at the process for drawing up the 2008 budget, where the European Parliament sought a total EU budget that was much higher than the Council's draft budget. Indeed, the Parliament budget was even higher than the Commission's original proposal.
	One effect of all this, on which I would very much welcome the Minister's comments, is that we may now see a continued over-allocation of resources to the common agricultural policy, expenditure which the Council can currently control, but no longer if these changes go through. By way of example, in the drafting of the 2008 budget, when it came to the heading largely comprising the common agricultural policy, the Council sought a total expenditure of €36.542 billion, whereas the European Parliament sought €36.995 billion, an increase of €453 million. I worry, therefore, that the other detailed changes which the Lisbon treaty makes will, in the Government's own words, erode financial discipline in the arena of a much bigger EU budget.
	The Council currently adopts the EU financial regulations that set out how the EU budget will be implemented and the accounts presented and audited, and decides the procedure for adopting rules governing checks on those overseeing the budget's implementation, with consultation only by the European Parliament. However, under the Lisbon treaty the adoption of these rules will move to co-decision, giving the European Parliament the power to veto the Council's wishes. When the same changes were proposed at the time of the earlier negotiations the Government opposed them. They said:
	"The UK does not support extension of co-decision to these articles in which Council control is fundamental to maintaining budget discipline".
	We need to know from the Government what has changed. What has given rise to this recommendation in this treaty? As I understand it, David Miliband, the then Secretary of State at Defra, and Paolo di Castro, the Italian agriculture Minister, signed a joint communiqué on 19 March last year on the Italian and British shared position on the future of the European agricultural policy, and soon afterwards David Miliband suggested that his recent discussions had indicated that the UK agenda for CAP reform had "growing support". It is really hard to understand how that can possibly be true with these Lisbon treaty changes. They will make it more difficult for the UK to address the clear and serious problems of the EU budget. Indeed, I think it will be much harder to tackle those concerns, and that is why I beg to move.

Lord Williamson of Horton: I made a declaration of interest at the start of the Committee stage and I do not think I need to repeat it now. I know that the noble Lord who moved this amendment is a bold noble Lord, and it is certainly very bold indeed to strike out of the Bill the entire budgetary powers of an elected parliament, which would be the consequence of the amendment, although he has spoken on some other matters. The European Parliament has had powers over the setting of the budget for many years, and I am one of those who believe that the changes proposed are an improvement. Part of the problem in the past has been that agriculture expenditure is too high. It has been under the control of the Council, and over many years agriculture Ministers have determined a very large part of that expenditure. In the amended system, they will not be able to do that on their own. I think that that is very satisfactory.
	The budgetary role of the Parliament is only part of the steady increase in the democratically elected Parliament's control of legislation and the budget over many years. Originally it was largely advisory, and the role in setting the budget, as the noble Lord pointed out, was strictly limited by the exclusion of the so-called obligatory expenditure, principally on agriculture and largely out of the control of the European Parliament. In earlier treaties the European Parliament increased its responsibility as co-decider on legislation over a much wider range of matters. I would say that those changes have now been largely completed, and if the Treaty of Lisbon is ratified, almost all legislation and the budget will be decided jointly by the elected representatives of the people in the Parliament and the representatives of the member states in the Council. Over a period of time that is likely to lead to a greater sense of financial discipline and the allocation of resources in a better way.
	In my view, for democratic reasons it is surely right to support the change in the decision-making procedure on the EU budget, and it is worth noting that when the Ministers controlled it, we all said that expenditure on agriculture was far too high. That will be changed by a change in procedure. While we know that agriculture takes over 40 per cent of the budget, I would like to stress that the figure does not really paint a complete picture of the budget of the European Union as part of the total public expenditure of the member states in their national budgets. The figures are striking and I think that they should be brought out. Certainly for the past 20 years, the European Union budget, which we are discussing in this amendment, has represented about 2 per cent of the public expenditure of the member states of the Union. The published figure for 2006 showed that the EU budget represented 2.1 per cent of member states' general government expenditure, the remaining 97.9 per cent being spent by member states on education, health, welfare, defence and the many other elements of public expenditure that we know all about.
	In the Lisbon treaty, as I said earlier, the European Parliament will take over responsibility jointly with the member states and the Council for European Union agricultural expenditure. This is important and I think it is an improvement, but I would like to make it clear that what we are talking about represents only around 1 per cent of member states' total public expenditure. I do not think that we should delete from the Bill, as proposed in this amendment, the budgetary responsibilities of the European Parliament.

Lord Maclennan of Rogart: In the previous debate, the contribution of the noble and learned Lord, Lord Slynn, elevated our discussion by reference to his very great experience. I think that we can listen with similar admiration to the views that have just been expressed by the noble Lord, Lord Williamson of Horton. In his own personal experience, he has observed the process of budget making at close quarters, and I am bound to say that I prefer his judgment that it is more likely that agricultural expenditure will be brought under control with the new proposed disposition than that which has relied on the judgment of the Council of Ministers.
	Indeed, it is strange to hear the noble Lord, Lord Hunt of Wirral, suggest that a movement towards greater democracy, in giving the European Parliament more parity of influence in both compulsory and non-compulsory expenditure, is unwelcome. That is particularly strange, having heard the speeches made on the previous amendment in which we were assured that what was being criticised was not the excessive law making of the European Court of Justice, so much as the inability of the European Union to amend its decision-making procedures in a more effective, democratic way. I want only to make the general point that co-decision making over all budgetary expenditure seems to me both logically sensible and democratically more accountable than the present arrangements and, if one looks at the representation of districts in the European Parliament, clearly alters the balance very considerably in a direction which is not likely to lead to greater looseness of control over other expenditure.
	The very fact, as the noble Lord, Lord Willamson, said, that this is such a tiny proportion of public expenditure makes it imperative and very much in the interests of the European Parliament that control is exercised in a way that renders expenditure effective, targeted and visible. That is what will result from these beneficial amendments.

Lord Kinnock: I was intrigued by the repeated references of the noble Lord, Lord Hunt, to the prospect of what he called a bigger budget for the European Union as a consequence of the changes being produced in the Lisbon treaty. I can certainly understand why he makes the detailed arguments but I cannot follow him in that particular argument. I should just like to pursue it for a moment.
	At present, as the noble Lord, Lord Williamson, highlighted on the basis of his very great experience, the European Union budget is around about 2 per cent of total public expenditure of the member states of the European Union. Sometimes it is a little less than 2 per cent, sometimes it is a little more, and it has been thus for decades. That budget is also equivalent—or has been for most of the past several decades—to about 1.15 per cent of the total gross national product of all the member states. It is actually slightly lower than that now as a consequence of the last budgetary exercise undertaken by the Council in 2004 and concluded under the British presidency. Eighty-five per cent of the budget—again a decades-old figure which is still valid—is spent in the member states. Indeed, most of it never leaves the member states and is obviously a book transaction in any case. That is entirely how it should be.
	The fact of the matter is that in the reform treaty, despite the alterations to which the noble Lord, Lord Hunt, drew attention in decisions about the allocation of the budget, the total of the budget remains in the hands of the member states in the Council. There is no power on earth—other than by the decision of those member states in the Council—that can produce an increase in the total of the budget. I find it very interesting that within that total there will be a new dynamic that involves the Parliament in decisions relating to so-called compulsory expenditure, which, as the noble Lord, Lord Hunt, said, is overwhelmingly the common agricultural policy.
	Having discussed these matters with European parliamentarians and Westminster parliamentarians for many years, I take the view, as the noble Lord, Lord Williamson, does, that the CAP budget will be a great deal more liable to amendment, reduction and re-orientation, because of the introduction of authority from the elected Parliament, than previously, despite the reforms that have taken place, when it has been the sole property of the Council and the agriculture ministers. Part of the impetus in the Parliament to make changes in the CAP and the common agricultural fund will come from the fact that it shares the view—it is certainly a majority view in this House and in comparable Parliaments elsewhere in the European Union—that too great a proportion of the total budget is still going to particular forms of agriculture support. That will produce a pressure on the CAP.
	Secondly, there are, as the noble Lord, Lord Hunt, rightly said, other ambitions for different priorities within the Parliament. There is a strong view—this has been the case for several years—that Community expenditure on research and development, consistent with the ambitions of the Lisbon strategy of 2000, should be much bigger. The budgetary exercise in 2004 cut to €19 billion the proposed €31 billion budget over the seven years of the current budgetary period proposed by the Commission. I did not think that that was a sensible direction in which to move in circumstances in which we are repeatedly told that the greatest source of effective competitiveness in the globalised economy is knowledge, scientific and technological prowess, and innovation. I simply think that that is worth investing in. The will of the Council, rightly representative of the elected governments, prevailed and democratically that is how it should be, however much I regretted the outcome.
	In the Parliament, that kind of ambition will be reflected. There will be an ambition to strengthen the commitment in the European budget to emergency aid, but, more particularly, to systematic long-term support for development in the Third World. There will be arguments over that too. I do not anticipate a huge increase in that area, but it certainly will be an alternative presented against the current level of agriculture spending as a proportion of the budget.
	Those tensions are healthy, democratic tensions. Those pressures are democratic pressures that really do reflect the changing priorities of modern Europe, including this country. I do not think there would be anything remotely like majority support for maintaining even the level of spending as a proportion of budget that has been reduced, that still goes on the common agricultural policy. It is to the credit of the member states and the Commission that, in the years since the mid 1980s, the proportion taken by the CAP has gone from about 70 per cent, then down to just over 50 per cent and is now about 40 per cent and should not just be lower, but should be allocated in a different way. There would be a stronger mandate even for spending 40 per cent of the budget on agriculture, broadly defined, if a larger proportion of that 40 per cent was going to rural development so that communities were provided with alternatives and attractions to encourage young people to stay in the rural areas. I do not think there would be a terrific argument about that. However, that, too, is one of the arguments that will now be heard in consideration of the European Union budget to the degree that it was not heard outside the Commission or in the Council in past years.
	I think that we are observing a healthy development in two respects. First, no change is implied in the total of the European Union budget, because I foresee no substantial change of will in the member states to bring about an increase in the total—certainly not one of any significance. Secondly, there will be a new source of argument about the priorities to be pursued with the money available in the European Union budget over a budgetary period. As the noble Lord, Lord Williamson, said, it will deprive the agriculture Ministers, with particular constituencies and priorities to serve over the decades, of a monopoly in conclusive decision-making on the way in which the budget for agriculture is spent. That budget still takes up a substantial part of the budget of the European Union.
	Legitimate though his arguments are in a parliamentary context, I hope that in the detail the noble Lord, Lord Hunt, will seek an opportunity to withdraw the claim that the consequence of the changes in the Lisbon treaty will be that the budget will be bigger. That will not be the case. Indeed, I believe that the changes will bring about a better, more accountable and more democratic form of decision-making because it will be a new method of shared decision-making between elected parliamentarians and elected Governments. That will be an advance for the European Union and the people who pay for it—the taxpayers.

Lord Dykes: I apologise to the noble Lord, Lord Grenfell, who may want to intervene now. If he does, I will give way, but if it is convenient I shall carry on. I think we should all be very grateful that in this brief debate—I am sure we hope that it will be brief, because there are plenty of other amendments to follow—we have had the great benefit of having in this Chamber two of the key experts on budgetary matters in the form of the noble Lords, Lord Williamson and Lord Kinnock. I am personally extremely grateful, as I am sure these Benches will be. I thank the noble Lord, Lord Kinnock, for his remarks, which to some extent reiterated some of the comments of the noble Lord, Lord Williamson, but they also put a modern gloss on the matters that we will see in the new budget mechanism in the future if all works out well.
	What surprised me about the rather masterly analysis of the noble Lord, Lord Hunt, which I think we all enjoyed, was that it sounded like an explanation of the budget of several years ago—particularly the CAP components and so on, and the distinction between compulsory and non-compulsory expenditure. He is right to say that the system will persist for a few more years before the changes come about but it sounded like living in the past. I apologise for repeating a point that was made last week by me and perhaps by others but this issue comes back to the nature of the origin of the amendment, which I think was Amendment No. 89 on page 563 of the House of Commons Marshalled List, probably of 3 February, if my memory of the numbers and date is correct. However, on that occasion, it was put forward not by Mr William Cash and Mr David Heathcoat-Amory but by Mr William Cash and Mr John Redwood. Presumably, in anticipation that the noble Lord, Lord Hunt, would be introducing this amendment today, the media sources in Vulcan—they have prescience and foresight there, which we do not yet have electronically in Great Britain or our universe—have been sending him the explanation of the budgetary system which will be replaced. I strongly agree with the assertion of the noble Lord, Lord Kinnock, that there is no way in which the belief of the noble Lord, Lord Hunt, that the budget will automatically grow too big beyond the existing level can be proven just by the change in this mechanism.
	I regret very much that a person who has honourably described himself as a European enthusiast—I accept his explanation—would seek to put a spanner in the works with this amendment. That is why I hope that it will not be pressed and that he will withdraw it at the end of this debate. It is a spanner in the works of a modernisation of the budgetary system which has been extensively worked on, fought for and struggled for over recent years both by Members of the European Parliament and—strangely, because it may seem as though there is a conflict of interests—by members of the Council of Ministers of the various member states. They see the need for modernisation and for the abolition of the distinction between compulsory and non-compulsory expenditure.
	This European budget remains a minuscule proportion of the total public, central government and other expenditure in all the member states. It is of the order of 1.5 per cent of total public spending, as was mentioned by the noble Lord, Lord Williamson. That is a tiny proportion. It remains a virtuous system in the sense that its receipts automatically equal its payments. That is particularly the case given that the UK now has an uncomfortably large budget deficit—the Conservative Benches in the Commons suggest that historically it is one of the biggest deficits ever. How many member states will be in that position? The answer is: not many. A while back, that was regarded as a virtue for member Governments—or individual national Governments before the European Community was created.
	Bringing in the European Parliament must surely be seen as sensible by noble Lords on the Conservative Benches, including the noble Lord, Lord Forsyth, and others, who earlier lamented the lack of a sufficient democracy within the European Union. That is precisely why this mechanism is being modernised under the proposals of the treaty. Therefore, it seems a shame that, once again, the Conservatives are not bringing us all up to date on what the Conservative Party in the Lords really feels about the European Union, our membership of it and this Lisbon treaty. It is a modest modernising treaty if ever I saw one—it is totally different from the old constitutional proposals—and the budget is a good example of that. The Conservatives are stuck in a groove, reflecting the other place, with the much deeper hostility towards Europe that is always encountered there.
	Subject to further arguments in this debate, surely we must back the Government in the proposal to support new Article 9A in the Lisbon treaty in order to bring about greater involvement by the European Parliament. The need for a health check for the CAP would coincide with that process. That would be mainly a Council of Ministers function and the European Parliament would react to it rather than being a prime mover. That is right because this will be a decision between sovereign member Governments. Personally, I do not believe that the French Government will be as difficult as some of the British newspapers suggest. They see the reality of the changes in the agricultural world, even in France. No one can criticise France, where the agricultural population has now fallen to 3 per cent; after the war, it was traditionally 25 per cent but many farms in France have closed down. The French see the logic of the modern system of the single farm payment, providing for the resuscitation of the environment and all sorts of other activities linked to farming. The end to production subsidies will come about quite soon—over the next few years—and, instead, there will be support for environmental and agricultural modernisation and investment. That must be the way forward. The elected representatives of the European Parliament, as well as the national MPs of all the national parliaments, will work together to achieve that objective. They will work with the Governments rather than follow the old-fashioned system that the noble Lord, Lord Hunt, seems to think should carry on for ever.

Lord Grenfell: I hesitate to intervene. I assure the Committee that I shall intervene very rarely in the Committee and other stages of the Bill, and I hope that I stick by that. The report of your Lordships' Select Committee seems to be something of a Cinderella in the debate. By consensus, we reached some conclusions which I think the Committee may want to recall. If I may, I shall mention one in particular, and I do so in no partisan spirit—I am neither for nor against the amendment. I am simply recalling what the all-party committee agreed by consensus as a conclusion on the question of the European Parliament being part of the co-decision procedure on compulsory expenditure—in particular, in relation to the common agricultural policy. Therefore, perhaps your Lordships will forgive me if I quote from paragraph 10.39 on page 230 of our report, which I hope will be helpful to the Committee:
	"The future policy impact of the move to co-decision is not clear. Much depends on the European Parliament itself, but the weight of the evidence suggests that the agriculture and fisheries committees of the European Parliament will in future represent, and be closely overseen by, a wider range of interests than the narrow producer interests that have historically dominated those committees. For these reasons, we expect that the change is likely to assist rather than impede further reform of both the common agricultural and fisheries policies".
	That was a consensus conclusion.

Lord Pearson of Rannoch: I give rather lukewarm support to this somewhat lukewarm amendment. Before dealing with the amendment itself, I will comment on the usual Europhile canard that has been put forward by the noble Lords, Lord Tomlinson and Lord Kinnock, supported by the noble Lord, Lord Dykes.

Lord Tomlinson: I have not spoken yet on this one.

Lord Pearson of Rannoch: I meant the noble Lords, Lord Williamson, Lord Kinnock and Lord Dykes. I apologise to the noble Lord, Lord Tomlinson—

Lord Tomlinson: You won't in a minute.

Lord Pearson of Rannoch: I fancy that the noble Lord would agree with the other three noble Lords that we really need not worry about this question of the EU budget because it amounts to only some 2 per cent of GDP and so is not worth bothering about.
	That canard is closely associated with that other line that we generally get from Europhiles, which is that there is really nothing much to worry about with the European Union because there are only 30,000, or 40,000, or perhaps 60,000 civil servants employed in Brussels—fewer than the Scottish Office used to have. Of course, the answer to that is that those 30,000, or 40,000, or 60,000 civil servants, whose number is difficult to discern accurately, make the law supported in the Council that is then executed by the civil services in all the member nations, which control the democracies of hundreds of millions of people. I hope that we will not get too much more of that in these debates.
	On the amendment itself, it is of course good that the European Parliament will now have more control over the budget, as the noble Lord, Lord Hunt of Wirral, explained. Well, it would be good if the European Parliament were actually going to use its new powers. The basic point here is that no European institution—not the Parliament, the Commission or the Court—wants to halt, inconvenience or hold up the gravy train that is the European Union.
	We have the clearest possible demonstration of that in the story of Marta Andreasen, who, as your Lordships may know, is now treasurer of the UK Independence Party. Mrs Andreasen was the first qualified accountant ever to be appointed to the position of chief financial officer in the European Union and, under the treaties, the chief financial officer had the power to control and be responsible for the budget. What happened? When she refused to sign off the first set of accounts that were put in front of her, she was first suspended and eventually dismissed. She is now appealing, so I do not want to say much more about her case, except that the first stage of that appeal—at some form of staff court in Brussels—found entirely against her and merely parroted the Commission's position. There is no hope, then, of reform coming in this area from the European Union institutions.
	As other noble Lords have mentioned, the accounts have not been signed off for 13 years. I remind the Committee that that process has been undertaken by the EU's internal auditors; this is an organisation whose internal auditors have refused to sign off its accounts for 13 years. If that happened anywhere else in the normal world, the directors would have been locked up at least 10 years ago, so I have a proposal that I hope that the Government will take seriously. I am sure that they will put this to the appropriate channels in Brussels. It is, quite simply, that the Court of Auditors should be abolished and a leading firm of international accountants appointed in its place, for perhaps five years. That leading firm should be selected by the donor nations to the EU's profligate coffers.
	In other words, the countries that produce the money for that absurd circus should be the ones to select a major firm of international auditors to get inside Brussels and see what is happening. Then the taxpayer might begin to get better value from this project and a greater understanding of it—and thus a greater determination to leave it. I would be grateful to know what the Government think of that considered suggestion.

Lord Hannay of Chiswick: It is always a pleasure to follow the noble Lord, Lord Pearson. I enjoyed him getting his canards in a twist just now; I am glad that he sorted them out eventually. However, on this issue, I was rather astonished to see this amendment proposed on the Marshalled List. I wondered why on earth those who oppose this Bill and treaty were looking a gift horse in the mouth. I understand a bit better now; I suppose that the real answer is that the red flag of more influence for the European Parliament had gone up and was considered to be a conversation stopper.
	Through all my experience of the European Union, which has covered quite a few years, British Governments and Members of the European Parliament have railed against the distinction between obligatory and non-obligatory expenditure. Now that that is about to be abolished, they discover that they wish that they had had more of it. I honestly do not think that wise.
	The introduction by the noble Lord, Lord Hunt, was subtle and careful, as usual, but he did not mention a couple of fairly germane points. First, what he called the nuclear option brings about something that could bring everyone to their senses if it ever had to be used, as the European Union would go on to what are called provisional twelfths. That is to say, it would have to spend per month what was available the year before. That is a conservative measure, so we should not feel worried by the possibility that it might arise in circumstances where one or another institution was going too far.
	Secondly, the noble Lord did not mention something rather important on the European Parliament—and although I do not wish to get into it, the proportion of gross national income covered by the European budget is a genuine issue. It is that the European Parliament, in so far as it gets more influence on the obligatory spending—when that becomes obligatory no longer—will still be totally constrained by the financial perspectives for the next six years and thereafter. These are agreed by inter-institutional agreement between the Parliament, the Council and the Commission. The flexibility given in all this will be pretty modest, so the amount of risk in giving the Parliament more say on the matter is pretty small.
	I will not stand here and argue that it is a sure, done deal that the Parliament will actually use its powers on every occasion as we would wish, but the words of wisdom from the European Union Select Committee should be considered rather carefully. The balance has shifted in the parliamentary committees and I hope very much that this amendment will not, on reflection, be agreed.

Lord Tugendhat: Over 20 years ago, I was the commissioner in charge of the budget. Of course, much has changed in the mean time and my recollections are, no doubt, out of date. However, I would like to cover some of the same ground as the noble Lords, Lord Hannay and Lord Williamson, both of whom I had the pleasure of working with when I was a commissioner. They were then British civil servants.
	First, I agree very much with the point made by the noble Lord, Lord Hannay, about what my noble friend Lord Hunt called the nuclear option. It is far from that; the budget was indeed rejected one year when I was the budget commissioner and everything went along smoothly thereafter on the one-twelfth system—a very effective way of curbing public expenditure. I am not suggesting that it should be used very often but, far from laying waste to the budget, it enables controls to be exerted.
	I agree with the point made by the noble Lord, Lord Williamson, that the European budget should be seen not in isolation but as a part of the totality of public expenditure within the European Union—as part of the totality of what is spent at the Union level and what is spent at the national level. In my opinion and the opinion of many noble Lords, rather more is still spent on agriculture than is justifiable but, as the noble Lord, Lord Williamson, said, we are talking about something like 1 per cent, which helps to put it into context.
	I do not agree with the noble Lord, Lord Pearson of Rannoch—I rarely do on these occasions—that because we point out that the European budget is only a very small proportion of European public expenditure, those of us who support the European Union feel that it somehow does not matter. Of course the budget should be subjected to exactly the same disciplines and constraints as public expenditure at the national level or at the local level. No one in his or her right mind—I am sure that the Minister will agree on this point—would suggest that you should exert discipline on public expenditure at one level but not at another level. It is quite absurd of the noble Lord to suggest otherwise.
	My penultimate point is that, rather than being about a larger or smaller European budget, the argument ideally should concentrate on whether expenditure can be most effectively made at the European level or at the national level. It is not a case of saying a big European budget is good or bad; it is a case of saying at what level—European, national, local or whatever it may be—expenditure can most effectively be made in the public interest.
	The burden of proof in those circumstances should almost always be on those who wish to transfer expenditure from the national to the European. I do not think that a large budget is a sign necessarily of a vigorous European Union. The European Union is about many things other than the budget and many of them are more important to the life of the European Union than the budget. In my view, the burden of proof should in general be on those who wish to transfer expenditure from the national to the European level.
	For that reason, I support a cap on the proportion of public expenditure that can be spent at the European level. I am in favour of a cap partly because I do not share the confidence that some others have in the European Parliament. Where you have an elected assembly—whether it is the European Parliament on the one hand or the Scottish Parliament on the other, to take two examples—that has the power to vote expenditure but is not responsible for voting the taxes that go to fund that expenditure, you tend to get the members of those assemblies generally in favour of spending. It is always nice to be in favour of spending and it is always less pleasant to be in favour of higher taxes. My own experience of the European Parliament—now a very long time ago—was that, in general, there was always a majority for spending more.
	If the European Parliament is to exert the kind of discipline on the budget that we wish to see, it needs to be within the context of a cap so that more on one lot of things will mean less on another lot of things rather than more on everything. The lessons of the European Parliament in relation to public expenditure might very well be applied in dealing with the Scottish Parliament.

Lord Tomlinson: The debate has reminded me of my 15 years as a member of both the Budget Committee and the Budgetary Control Committee in the European Parliament. It has reminded me of one of the happier moments—the noble Lord, Lord Tugendhat, referred to this—when the budget was rejected and we went on to provisional twelfths. It was quite remarkable how, just before the summer holidays, the rational European Parliament realised how much in pay and allowances was being stored up by provisional twelfths. I am sure that it had a salutary effect on its members to approve the budget just before the break in order to give themselves sufficient resource to go and enjoy it.
	That was one of the better experiences. The worst was when the noble Baroness, Lady Thatcher, introduced into the European budgetary debate the question of the juste retour: "Can I have my money back?". She completely failed to understand the importance of the non-compulsory expenditure part of the budget to European parliamentarians. That was the money that was being spent on environmental policies, where you did not get your money back but you got a decent European policy; on development assistance in the third world, where, again, you did not get the money back but you did something right and proper for trading relationships in the third world; and on the regional policy that helped countries such as Greece, Spain and Portugal to equip themselves to join the European Union. Without those, how much money would we have spent on the defence of the southern flank of NATO without ever mentioning it as public expenditure? The nonsense of the juste retour was one of the worst aspects.
	I say with absolute clarity to the noble Lord, Lord Pearson, that no one has said in the debate that the European Union budget is insignificant. Any expenditure at that level is always significant. The European Union budget is perhaps the most examined, the most clearly scrutinised, the most pored over part of our public expenditure. If we pored over defence expenditure and got paranoid about the times when the accounts of social security and work and pensions were qualified by the Comptroller and Auditor-General in the same way as we do over this rather mythical refusal to sign off the budget, we would perhaps have a better state of public expenditure.
	I see the noble Lord, Lord Willoughby de Broke, has had his instructions from the noble Lord, Lord Pearson, and that it is his turn to intervene.

Lord Willoughby de Broke: The noble Lord said that the challenges to the accounts were mythical. Can he remind the Committee whether the accounts have been approved or qualified for the past 13 years?

Lord Tomlinson: If the noble Lord had controlled himself, he would have had the answer by now, because I was just coming on to that issue.
	We have to consider what the Court of Auditors does. It produces a statement of assurance based on a particular statistical base that produces—I say this to my noble friend Lord Kinnock—far too small a sample to necessarily predict the underlying transactions correctly. I said that frequently as a member of the Budgetary Control Committee. Of the two parts of the statement of assurance, the balance sheet has always been approved and there is always a questioning of the regularity and the reliability of the underlying transactions.
	It is all very well to smirk about the underlying transactions, as the noble Lord is doing, but they are 85 per cent expended in the member states. Most of the criticisms of underlying transactions are criticisms of what happens in departments such as Defra. Of the underlying transactions that take place in this country, as my noble friend Lord Kinnock explained, most of the money is transferred money and does not even leave the United Kingdom.
	There is a serious problem with fraud and irregularity. However, if we look at fraud and irregularity in the European Union budget carefully, we find that the majority of it is not on the expenditure side of the budget but on the revenue side—the collection of own resources. One of the things that we have to do on the budget—the people who have been taking the lead in this are the members of the European Parliament Committee on Budgets—is to get away from the traditional own resources, which are both a diminishing part of the budget and the most fraud-prone part of the budget, and get a more sensible system of financing the European budget.
	The noble Lord, Lord Hunt, paints a picture of the European budget inevitably leading to a bigger budget, but there is nothing inevitable about that because the final control of traditional own resources is a power retained by Parliament. National parliaments retain the power for the ultimate approval or disapproval of the level of own resources in the budget.
	I believe that the abolition of the distinction between compulsory and non-compulsory expenditure is a proper, right and necessary course. We have been slow to adopt it. It has been on the agenda for a long time; a large number of parliamentarians, including me, supported it during the Convention on the Future of Europe. Tonight we should be inviting the Opposition to withdraw their amendment, although we need not in any sense beg them to, because, if we test the opinion of the Committee, the amendment will be defeated.

Baroness Ashton of Upholland: I am grateful to all noble Lords who have spoken in this debate, particularly for the expertise and experience that has been evident in all the contributions.
	I begin where the noble Lord, Lord Maclennan, began, in saying how much the UK has always been in favour of increasing democratic accountability and transparency of EU procedures and policy-making. As many noble Lords have pointed out, scrutiny of the budget by Parliament and Council is key to ensuring democratic accountability and transparency. Giving the European Parliament joint authority with the Council over the annual budget will increase democratic accountability, as the European Parliament will share with the Council the important task of agreeing the annual budget. However, the key budgetary decisions on the multi-annual financial framework expenditure ceilings and own resources, which I will explain further in a moment, will continue to be taken in Council—by unanimity.
	Noble Lords are correct in their assumptions that in the context of the annual budget procedure, the Lisbon treaty will expand member states' influence. As the noble Lord, Lord Hunt of Wirral, said, the treaty will remove the distinction between "compulsory expenditure" and "non-compulsory" spending. As the noble Lord indicated, compulsory expenditure is mostly common agricultural policy spending, over which the Council currently has the final say and which is approximately 35 per cent of the budget. As noble Lords have pointed out, the non-compulsory element is the 65 per cent over which the European Parliament currently has the final say.
	Under the treaty, all spending will be subject to the same classification, and therefore no one part of the budget authority will have the final say over particular areas of the budget. We believe that that increases the Council's leverage across the budget as a whole.
	The noble Lord, Lord Grenfell, kindly indicated the comments made by the Committee in its report and I am extremely grateful to him. The conclusion of the paragraph that the noble Lord referred to says:
	"The abolition of the distinction between compulsory (agricultural) and non-compulsory expenditure is a significant step alongside the application of the ordinary legislative procedure to agriculture policy. The change will make the agricultural budget-setting process more transparent, open and balanced".
	I want to deal with some of the specific points that have been raised before I outline what the procedure will be and, I hope, address the central point made by the noble Lord, Lord Hunt of Wirral. I was grateful to the noble Lord, Lord Pearson of Rannoch, for his contribution and for his suggestion about the Court of Auditors. I will explain what the Court of Auditors currently is, because I am not entirely convinced about the noble Lord's suggestion; I believe that the court does what the noble Lord was suggesting it should. First, there is one member per member state. Secondly, the individuals must have belonged, at national level, to an external audit body, or be especially qualified. Thirdly, their independence must be beyond doubt. I think that that brings together a group of people of extraordinary experience, as expert as any independent group of auditors from any nation state.

Lord Pearson of Rannoch: That may indeed be a somewhat hopeful description of the Court of Auditors, but it is not working. The accounts continue to be qualified. Billions are being wasted. If it were subject to a serious audit from an outside firm of auditors, we would get a very different result.

Baroness Ashton of Upholland: I dispute the fact that it is not working; the Court of Auditors does its job very well. Members of the Committee have already commented on the fact that this is the 13th year in succession that we have not had what I would describe as a clean bill of health. We are not happy about that—we are concerned. However, this is not equivalent to finding fraud. Most of the irregularities that the court has found have been genuine errors which are later rectified. As in previous years, the court has said that the transactions underlying the financial statements for 2006 were legal and regular in respect of revenue, commitments and administrative payments. Further, there has been some improvement from the 6 per cent of accounts that it signed off in 2003, the 35 per cent signed off in 2004 to just over 40 per cent in 2006. Much of its difficulty in giving a positive statement arises from the areas of expenditure which are jointly managed by the EC and member states. This was almost 80 per cent of the EU budget funding in 2006.
	We are talking in large part about making sure that those procedures function effectively and not about allegations of fraud. The fact that so many errors are rectified later does not mean that the court is not able to do its job properly. That is incredibly important.

Lord Pearson of Rannoch: But the Commission is still responsible for all the expenditure. The Commission does not have to go on giving millions of pounds to crooked Greek olive farmers or whatever. It could follow it through and withhold the money, but it does not, so the fraud—the irregularities—continue.

Baroness Ashton of Upholland: I hope that the noble Lord is able to support the allegations that he just made. I doubt that he is.

Lord Pearson of Rannoch: The Commission is technically responsible. I am not saying that it is doing this, but under the treaties, the chief financial officer and the Commission are responsible for all the expenditure.

Baroness Ashton of Upholland: That is not the allegation that I was referring to. If noble Lords look at Hansard, it will be very obvious what the noble Lord, Lord Pearson, actually said. I do not think that we should do that in your Lordships' House; we must be clear that the word "crooked" is inappropriate. I would argue that it is never appropriate, but I do not think we should use it in these debates.
	The noble Lord is making a separate point about the role of the Commission. The point I was making is that a lot of expenditure is through member states and that the European Court of Auditors made the point that when there is joint expenditure, some issues arise. Noble Lords who have dealt with getting accounts in public bodies will know that quite often, qualified accounts are not about irregularities that are fraudulent or cause concern; the irregularities have simply occurred in administrative measures. It does not mean that we are complacent or happy about it, but I am concerned that we are clear about what we are describing .
	Members of the Committee talked about the Common Agricultural Policy and its proportion of expenditure. Agricultural expenditure has already fallen from around two-thirds of the budget in the 1980s to 44 per cent in 2007. In the course of the 2007-13 financial prospective spending, it will fall in real terms by 7 per cent.
	I would like to describe the procedure as it will be, so that noble Lords who are not familiar with how it will work, as I was not, can understand it. I hope that that will be helpful, not least as noble Lords look back on this and think about other stages of the debate. I apologise to noble Lords who know this extremely well, but what is called the financial perspective is agreed by member states by unanimity. That is the overall expenditure for general areas for a seven-year period. The treaty will put that on a secure basis for the first time. There are six areas involved: sustainable growth, which is 44 per cent; natural resources, including agriculture, which is 42 per cent—I am rounding these figures up; justice, home affairs and citizenship, which is 1 per cent; external relations, which is 5 per cent; administration, which is 5 per cent; and compensation to new states, which is 0.2 per cent.
	The own resources decision that is then made by unanimity sets the size of the contributions to the EU budget for the period of the financial perspective—in other words, for the seven years—including member states' contributions and rebates. That is unchanged from the current arrangements and is implemented in the UK by primary legislation, with which noble Lords will be very familiar. The annual budget procedure, which sets the levels of detailed expenditure for each year within the ceilings that have been determined by the financial perspective by unanimity by the Council, is jointly decided by the Council and the European Parliament.
	I hope that puts it in perspective: the overarching figures are agreed by unanimity, there are decisions about the percentage breakdown within that, and then what happens within those budgets is jointly decided. After that, the Commission proposes a budget. Both the Council, by QMV, and the Parliament, by simple majority, can propose amendments if they wish. If they cannot agree on the amendments, the Council and the Parliament meet in what is now described as a Conciliation Committee, which is new. The Council, again, acts by QMV. The committee's proposals are sent back to the Council and back to the Parliament. If the Council rejects them but the European Parliament agrees them by a three-fifths majority, they are adopted. If the committee cannot agree, the Commission must submit a new budget.
	The critical part of that process is that when the Conciliation Committee comes together, it consists of the Parliament and the Council. Whether the Council representatives are Ministers or officials—the treaty is silent on that; that is to be worked through—they will be mandated, whoever they are, probably by ECOFIN but certainly by the Council, to speak on behalf of the Council. They will go to that committee and try to reach agreement.
	If the committee cannot agree, the Commission has to start again. If the committee agrees—in other words, we have mandated representatives as if we were the European Council and our representatives on our behalf are no doubt reporting back and keeping us informed of each conclusion with which the Parliament agrees—and for some reason, having done that, the Council rejects it when it goes back, the European Parliament then has a say.
	That addresses the point of the noble Lord, Lord Hunt of Wirral. I was searching my mind because when I went through this process I was looking for where the Council keeps and grows its strength, in a sense. Its strength is that if its mandated representatives cannot reach agreement in that committee with the Parliament, the whole thing is off. It is only if they have reached agreement and then the Council decides to ignore its mandated representatives that the European Parliament can step in. That is an important way in which the Council retains and, indeed, develops its role and responsibility.
	Having said all that, I take nothing away from the importance and value of the role of the European Parliament. I hope that on that basis the noble Lord can withdraw his amendment.

Lord Hunt of Wirral: My Lords, this has been such an important debate. I am grateful to everyone who has participated, particularly the former commissioners, my noble friend Lord Tugendhat and the noble Lord, Lord Kinnock. To echo the words of the noble Lord, Lord Maclennan of Rogart, I was particularly pleased that the noble Lord, Lord Williamson, participated.
	The one question I do not think the Minister answered was when the Government changed their mind. They went into these discussions about control of the budget with Mr Peter Hain saying clearly that they could not accept the European Parliament jointly exercising the budgetary function; that was clearly laid down, whether it was a "red line" or whatever. I do not think the Minister has explained to us satisfactorily when it all suddenly changed and what had been unacceptable became acceptable. Anyway, she has done her best with the brief she has, and we will carefully examine all the points she has made.
	The noble Lord, Lord Maclennan, mentioned greater democratic control. I dare say the other place would have loved to have been able to rewrite the Budget of Mr Brown and Mr Darling; had it been left to the Parliament, I am sure it would have done. One therefore has to ask oneself: what does one mean by greater parliamentary control and greater democratic control?
	The noble Lord, Lord Kinnock, reassured me on a number of points. He promised—and I am going to hold him to this—that the change would result in amendment reduction and the reorientation of the common agricultural budget. He believes it, and that is wonderful to behold—but he has believed a few things in the past and then changed his mind, as he reminded us on Second Reading.

Lord Kerr of Kinlochard: If the noble Lord is so nervous about the abolition of obligatory expenditure, why, during the convention—when, as the noble Lord, Lord Tomlinson, recalled, the idea was first discussed—were the French Government the Government who were most nervous of it and opposed it most strongly? The Governments who strongly supported it were the budget-disciplinarian Governments—that is, those of northern Europe. The only strong support the French had was from the Polish Government. Can he explain that?

Lord Hunt of Wirral: That is all to do with the common agricultural policy and the track record. We all know where we are; the question is, where are we heading and where are we going to end up? That is why I found this debate very interesting. I hope everything that the noble Lord, Lord Kinnock—to whom I was referring before I was quite rightly interrupted—has told us is going to happen will indeed happen.
	I am grateful to the noble Lord, Lord Grenfell, for reminding us of those consensus words, but I remind him that his committee reported that it believed the balance on the European Parliament committees had changed. I am not yet persuaded, but if he and his committee are right, that is some hope for the future.
	I do not think I am going to satisfy the noble Lord, Lord Pearson, because he has already identified me as a European enthusiast. Although I would rail as much as he does against wrongful expenditure, I am not going to be able to answer him.
	The noble Lord, Lord Hannay, made some important points about the "provisional twelfths" and introduced some relevant comments from my noble friend Lord Tugendhat as a very effective way of curbing expenditure. That was also useful. Ideally, as my noble friend said, expenditure has to be at the right level. He is a wonderful exponent of that great principle of subsidiarity. That was a helpful contribution, too.
	I thought the noble Lord, Lord Tomlinson, erred in giving the European Parliament a slightly bad name about its motivation for passing the budget just before it went on holiday. However, I realise that it was a pleasantry, and I accept it as such.
	I recognise the relevance of what the Minister said regarding the Court of Auditors. All I would say in support of some of the comments that have been made is that in 2005 the European Anti-fraud Office was in receipt of 12,000 reported cases of irregularities involving the EC budget, including one involving grants totalling more than €1 thousand million. There is a situation that requires remedy; whether it is through the democratic control we have spoken about in this debate or through some other route, we can continue to speculate.
	This has been a valuable debate. Indeed, the noble Lord, Lord Dykes, said what a good debate it had been. I agree with him, but he has to recognise that it would not have taken place had it not been for the fact that the official Opposition have put down this amendment, which he and his colleagues are refusing to do on any part of the Bill. We would have no debates at all if it were left to the noble Lord. I would like to reflect on what has been said, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Howell of Guildford: moved Amendment No. 9:
	Clause 2, page 1, line 12, after "excluding" insert—
	"(i) Article 1, paragraph 16, inserted Article 9B TEU, paragraph 6, so far as it relates to the role of the President of the European Council in external representation of the Union; and(ii) "

Lord Howell of Guildford: I approach this amendment with trepidation, because I am aware that it is the only thing that stands between your Lordships in Committee and some fortification before we turn to even more important issues that lie immediately ahead. As this is the first opportunity I have had to move an amendment on the second day of Committee, I start with what is best described as a correction. My memory of the precise numbers of Hymns Ancient and Modern was at fault. It was kindly pointed out to me—both by the former Permanent Under-Secretary of State at the Foreign Office, the noble Lord, Lord Jay, and by the noble Lord, Lord Wallace of Saltaire—that I had got either the number or the hymn wrong. It was not Abide with Me, it was Lead, Kindly Light, hymn 215. I want to put that on the record and I hope that your Lordships will allow that correction.
	We come to a debate of considerable significance—I hope that most people, possibly even our Liberal Democrat colleagues, will agree on that—concerning the new role of the more entrenched president. Of course, there were presidents before, but Article 15(b) of the new treaty proposes, under subsection 6(d):
	"The President of the European Council shall, at his or her level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy".
	It adds:
	"The President of the European Council shall not hold a national office".
	We have already touched on this matter in debate, although rather tangentially. The wording is identical to that in the earlier, rejected constitution, except that the reference now is to the High Representative of the Union for Foreign Affairs instead of to the Union Minister for Foreign Affairs—otherwise, it is just the same. This president is to be put in place for two and a half years, renewable once and chosen by qualified majority voting. This is identical to what is in the constitution. I know that we have had long debates, and will no doubt have more, about the degree to which this treaty represents what has gone before in what was called the Constitutional Treaty, and indeed, since our last Committee meetings, the noble Baroness has been good enough to circulate quite a few letters that we have all received. The noble Baroness has been extremely busy in her letter-writing and one letter she sent explains her views on why this treaty is different, and attaches a long paper from a learned professor to that effect. I said that I would not trade quotations and I am not going to trade professors, either—although I have a whole raft of professors or considerable distinction saying the opposite to her professor. I think we would tire each other if we paraded all their views at length. All that can be concluded is that professorial opinions and academic opinions of equal weight, worth and reputation are in total conflict on this issue that the Government have rather dug in on; namely, their claim that the Constitutional Treaty and this treaty are not broadly the same.
	I turn to the role of the president, as proposed in his or her new capacity. We should give considerable time to this—possibly more than our colleagues in the other place were able to, for various reasons—because the democratic instinct needs to be mobilised and applied carefully when it comes to appointing new figures, placing them on high pedestals and giving them powers that in the modern world can lead—this is the result of the networked world and the information age—to the magnification of celebrity at one extreme and the suppression of run of the mill and ordinary performance at the other. It is said that the effect of the information age is to increase the disparities between the lucky or meritorious ones who become famous, and the rest of us who fall into grey obscurity. We need to approach this presidential issue very carefully.
	The noble Lord, Lord Wedderburn, in his recent pamphlet, warns us—no, he is not in his place—that we should be very careful when it comes to presidents.

Baroness Ashton of Upholland: I am sorry to interrupt, but I thought the noble Lord would want to know that the noble Lord, Lord Wedderburn, has had an emergency operation. I think that he is doing fine, but he has not been well at all. I thought that I should put that on record.

Lord Howell of Guildford: I am extremely sorry to hear that. He is an extremely wise contributor to these issues. He has written a pamphlet with some observations on this treaty debate. I strongly recommend them to all your Lordships as full of wisdom. He warns us that we need to be very careful when it comes to presidents and giving them powers. He points out—and this is obvious to all of us—that this treaty, like the constitution before it, in effect gives us several presidents. It gives us the new two-and-a-half-year or five-year president of the Council; it gives us the rotating president of the Council, who was there before; the Commission president, who was there before; and of course the European Parliament president, who was there before. It also gives us the person who was called the Foreign Minister in the Constitutional Treaty and is now called the high representative, who has quasi-presidential powers as the double-hatted vice-president of the Commission and the chairman, so I understand—this is one of that many issues that have not been clarified—of the new Foreign Affairs Council. That figure will hold a very important role in defining the stance of the European Union on foreign policy issues, and how that fits in with the stance of the new president, as defined in the new treaty that I have just read out, is a bit of a mystery. We need to examine that carefully and give our combined views as guidance for the many issues that have yet to be resolved in this field. These are not settled matters—it is not a question of reopening the treaty, but of influencing many decisions yet to come.
	One argument used for the longer-term presidency is that the six-monthly business was very inefficient. That is the assertion that we hear from experienced officials and those who are anxious to improve the efficiency of Europe. The same argument, interestingly, is used on the website of the Foreign and Commonwealth Office. In the section entitled Lisbon Treaty myths, it talks of the need to enlarge the powers and lengthen the term of office of the president—and also, incidentally, to combine the roles of the high representative, both as a vice-chairman of the Commission and a member of the Council—because, it says, this will overcome and eliminate "wasteful wrangling". This is a wonderful insight into bureaucratic minds. Do these people not realise that what they think is wasteful wrangling is, to democrats, healthy argument and disagreement, which are necessary ingredients for successful democratic institutions to live and breathe? The truth is that time and again, we come up against a state of mind that I find quite objectionable, which, when it talks about efficiency, is actually talking about being able to shovel through the European Union sausage machine more laws and more regulations, more quickly, so that the ambitions of those who want more laws and more regulations can be satisfied more swiftly. That is not the kind of efficiency that a democrat should welcome, and it certainly does not bring the institutions of the European Union nearer to the people, which was the original ambition of the Laeken Council.

Lord Clinton-Davis: The noble Lord has made an assertion. Will he kindly clothe it in fact? It is no use simply asserting something; you have to prove it.

Lord Howell of Guildford: One way in which I could prove it is by pointing out that a great many regulations and laws have poured out of the European Union authorities and institutions, and that is labelled by some people as efficiency. But I am talking about arguments and opinions, and saying that we have been told that the longer-term president will increase the efficiency of the European Union. I am giving a rival opinion. If efficiency means more regulations and instruments emerging from the legislative machine, that is not the kind of efficiency which the democrat would necessarily welcome.

Lord Hannay of Chiswick: I have a feeling that we are confusing efficiency and effectiveness. Those who support this treaty and the role given to the new President of the European Council, particularly in the external field, do so in the belief that it will increase effectiveness. It has nothing whatever to do with the legislative process or the speed with which sausages are made in the Brussels machine—I am sure that we will hear plenty about that from the noble Lord, Lord Pearson. Effectiveness is different. As the noble Lord will know, it is very often the British Government's practice to talk about efficiency and effectiveness in respect of reform of international institutions. They are two different things. We are talking about effectiveness in this case.

Lord Howell of Guildford: It is a lovely distinction and I respect it, but when it comes to bottom-up democracy and the demand for humble institutions to call people to account, whether they are being more efficient or effective becomes a fine distinction. Is it more effective, for instance, that the European Union should ram through its energy policy on biofuels? The answer, we all know now, is no. What a pity it is that the people concerned were so effective or efficient that they put the policy together, because it is turning out to be a disaster—although that is not yet fully recognised by the Commission. We can think of many other cases where effectiveness and efficiency have combined to produce a policy at the centre which has been damaging and could have been stopped by more democratic argument and wrangling, with more doubts and difficulties put in the way before it was rushed into.
	I do not want walk right into the cry of comparing apples and onions, but the approach of the most democratic country in Europe, which everyone recognises to be little Switzerland, which is not a member of the European Union, is to have a president changed once a year and for that person not to be placed on a particularly high pedestal. It used to be the principle in this country, underneath our own monarchy but within our elected sphere of government, that the president should be primus inter pares, although some recent incumbents have slightly ignored it. That is the healthy democratic instinct which I would expect a Parliament such as ours to support and urge before we endow some more deeply entrenched president with a longer term of office and considerable powers—although they have yet to be decided. I am obviously vulnerable to the cry that one cannot compare a gigantic Union with little Switzerland, but one can compare democratic principles wherever they flourish.

Lord Dykes: How can the noble Lord reassure us by comparing the small country of Switzerland, which has a presidential system of a totally different construction—it is an esoteric country, too, which is apart from other countries, as we know—with the co-ordination among 27 member states of a European Council president operating for a longer period and of their agreed policies? Does he not agree that one of the reasons why the Commission is often wrongly blamed for rushing out policies is the pressure created by member Governments constantly asking it to deliver those policies as quickly as possible?

Lord Howell of Guildford: I realise that I was opening myself up to that intervention, but the argument cuts either way. If the principle in a small democracy is not to elevate on a pedestal too high a particular individual, particularly in this celebrity, media-driven age, but to have a regular rotation so that no one acquires too much power, personality or personal influence, one could perhaps argue that, in this enormous Union of around 500 million people, with its 27 rising to 28 members, the case for avoiding the overglorification of a presidential figure is even stronger. It is a cause for some sorrow to hear from the Liberal Democrat Benches that they are not worried by endowing an individual at a very high level with great power, which will probably be the case, although we have not worked out what that degree of power is meant to be.
	I turn from the efficiency/effectiveness issue to the rather interesting letter that the noble Baroness the Lord President has circulated since our previous Committee stage debate. It is from the Minister of State, Mr Jim Murphy, to my noble friend Lord Grenfell.

Lord Neill of Bladen: Will the noble Baroness circulate the letter a little more widely? It does not follow that some of us who have not spoken yet do not have ideas. We would like to know, for example, what was said by the learned professor, to whom reference has been made.

Baroness Ashton of Upholland: The letters that I have circulated went to everybody who participated and everybody I could think of—well, they should have done. I ask noble Lords to check their pigeon holes. They are all in the Library of the House.

Lord Howell of Guildford: The noble Baroness will now see that there is a great thirst for her letters, and we are asking for more. I do not know whether they will shorten our proceedings, but they are certainly extremely interesting and informative. The letter to which I refer is one that I had not seen before. It is dated 22 April and addressed to the noble Lord, Lord Grenfell, as chairman of his very distinguished committee. It comes from Jim Murphy and is concerned with "implementation issues". It raises a whole string of concerns about the Council presidency and the role of the president, which the Slovenians, who hold the presidency until 1 July, when the French take over, want resolved. They affect us very much, as they do the powers and role of the president. We are not clear whether this will be a ceremonial or an executive figure. Will the president have real hands-on power and the capacity to influence by words, comments, speeches and opinion-forming the entire global posture of the European Union and its 27 members? We just do not know which sort of president we are dealing with. It is only fair to suggest that, before we proceed very further with the ratification of this Bill, those who are placed in authority to make these decisions should, first, have reached them and, secondly, report them to the national parliaments in considerable detail so that we can look at them. It is no wonder that the Slovenian president is complaining about back-door deals and saying, probably in vain, that "we need a democratic process" in settling the presidency issues and candidatures. I do not blame him for saying that at all.
	That brings me to the third aspect of the amendment, which concerns the future role of the president and interrelationship with the high representative, who will now be the vice-president of the Commission and a member of the European Council. We have already touched on this matter in Committee debates, but inevitably many of these issues are cross-issues that come up again and again and we cannot necessarily cut them out of future debates—

Lord Roper: Perhaps I misheard the noble Lord, but the high representative is not going to be a member of the European Council, which is reserved for the Heads of State or Government of the member states. He is going to chair the Foreign Affairs Council, but he certainly will not be a member of the European Council.

Lord Howell of Guildford: I am sorry, but the Foreign Affairs Council is a child of the former general council. The General Affairs Council and the Foreign Affairs Council are now split, and he will chair the latter. That is what I call a European council.

Lord Roper: I think that the noble Lord misunderstands. The Lisbon treaty formalises the European Council, which is distinct from the Council of Ministers. The high representative will chair one of the Councils of Ministers. He will not be a Member of the European Council, which is made up of the Heads of State or Government of all the member states and meets every six months.

Lord Howell of Guildford: The noble Lord is right: I should have said Council of Ministers, not the European Council. It is perfectly clear that he is not a Head of State. I am sorry if that was obscure. He is right to say that I missed out words. Council of Ministers is what I meant.
	I come now to the issue of whether the president of the Council should be double-hatted and also be, as was rumoured, the President of the Commission as well. In an exchange we had the other day, that was dismissed as unlikely and, indeed, impossible. We know what the Government wanted. Some time ago, in 2003, in an impassioned speech, the current Secretary of State for Justice and Lord Chancellor made it clear that the Government were very unhappy about any kind of treaty that might leave the door open in any way to this combination of offices. The British Government wanted tough clarification in the old constitutional treaty that that should not be so. In practice the British Government did not get what they wanted, and in practice we were left with the phrase, in relation to the president, "shall not serve national office". That is all. That is in both the old constitutional treaty and in the present one.
	The other night there was a series of exchanges, which I found extremely misleading, in which it was claimed that the British Management Data Foundation's Lisbon treaty grid, a massive document, was incorrect about this matter. The noble Baroness said that it was not true that nothing in the treaty prevented the President of the Commission also becoming the President of the European Council and she urged whoever had written that to get in touch with her, which they have duly done. I expect that she has received a letter.
	It seems to me that the noble Baroness's dismissal was incorrect. The issue is being constantly aired by senior European officials, including the former Italian Prime Minister. Indeed, it has been proposed that the president should be directly elected by the current President of France. Nothing in the treaty could stop that except the words that I described. The earlier and much stronger words that the British Government wanted have failed to get into either the constitutional treaty or the present one.
	Why do I spend any time on this? Why does it matter if it is said to be so unlikely? Why did it matter so much to the Government before? It is for a very obvious reason. It blurs the role between the supranational and supposedly independent Commission and the international Council. It also blurs the issue of whether or not the common foreign and security policy is ring-fenced, as Ministers repeatedly claim it is. We will come later on to that whole debate in much greater detail, as we will to the noble Baroness's fascinating observation in one of her letters that the ECJ's role in these matters is to police the frontiers between the common foreign and security policy and other Community matters.
	We have always sought and wanted practical co-operation with our EU neighbours on a wide range of issues in foreign policy, such as Burma, the Balkans and maybe Russia, although many countries in the European Union are quietly doing their own thing in their relations with Russia. We had a try at the Iran situation, although it did not have much effect in the end. We are still struggling with that. The question is whether we want to codify and legalise all this so rigidly. That is the question. It is the question posed by this amendment. I beg to move.

Lord Bach: I beg to move that debate on Amendment No. 9 be adjourned.

Moved accordingly, and, on Question, Motion agreed to.

Lord Bach: I beg to move that the House be resumed. In moving the Motion, perhaps I may suggest that the Committee stage begin again not before 8.36 pm.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Criminal Justice (Northern Ireland) Order 2008

Lord Rooker: rose to move, That the draft order laid before the House on 3 March be approved.

Lord Rooker: My Lords, I shall speak to both the Criminal Justice (Northern Ireland) Order 2008 and the Criminal Justice (Northern Ireland Consequential Amendments) Order 2008. Copies of the draft orders were laid before the House on 3 March. Like other noble Lords, I hope, I welcome the opportunity to consider both the main order and the consequential amendments order as part of the same debate. They will, however, be moved separately. Both orders are Orders in Council as this is not a devolved matter. Although that is not the issue for this debate—everyone knows the rules regarding the devolution of criminal justice—given the amount of time that these issues have been before the public, it is important that this House should consider the orders.
	Before I start on the actual orders I should refer to a correction slip which noble Lords may have seen associated with the draft order. The Joint Committee on Statutory Instruments felt that we should have included a slightly fuller text in the preamble and recital powers of the order. The correction slip provides this and will become part of the final order for printing if it is approved by Parliament.
	The main criminal justice order before us is one of the most important pieces of Northern Ireland criminal justice legislation to be brought before Parliament in many years. It provides a significant shift in the sentencing framework available to Northern Ireland's courts. We know from the extensive consultations that we have undertaken in preparing this order that it has widespread support across Northern Ireland.
	The order changes the fundamental nature of imprisonment in Northern Ireland. It creates a new form of risk-based sentencing and release for those sentenced to prison. It creates tougher sentences; allows dangerous offenders to be locked up longer—some can be held indefinitely; and permits release only when it is safe to do so. It removes the automatic 50 per cent remission which has so long been a feature of imprisonment in Northern Ireland and replaces it with a custody and supervision regime. Prisoners will henceforth spend all the custodial time announced in court in prison followed by a period of statutory post-release supervision. The entire sentence is served. The order ensures that custody is reserved for those who most merit it and provides a balanced set of powers to the courts through new community-based options. Increased post-release supervision provides added protections and helps prisoners resettle, reintegrate into their communities, and, one hopes, move away from offending.
	The second half of this order is also significant. There are a range of new powers around road traffic law, alcohol, and knife crime, and a range of procedural aspects to make Northern Ireland's criminal justice system more efficient.
	The order has its origins in a number of policy consultations and proposals carried out over a number of years. Building on a recommendation from the criminal justice review, a policy consultation was carried out in 2005 and a need for additional powers to deal with and manage dangerous violent and sexual offenders identified. A proposed draft Criminal Justice (Northern Ireland) Order 2007 was then prepared and consulted on from November last year until January this year. The road traffic law proposals were subject to their own policy consultation, as were those on knife crime. Some 54 responses came in, which we consider to be particularly successful.
	The Northern Ireland Assembly—and I think this may be the first time I have been able to say this on an Order in Council—established an ad hoc committee to consider the draft, gave it detailed consideration and was in support of what the order is set out to achieve. The ad hoc committee was made up of all the main Northern Ireland parties, and all supported the sentencing package. A number of Ministers from the Northern Ireland Executive, including the First and Deputy First Ministers, also expressed support. The Probation Service supported the sentencing powers, as did the chief constable. The public, too, have supported our proposals. A major campaign resulted in a petition of some 35,000-plus signatures calling for the ending of automatic 50 per cent remission.
	Events themselves have also been a factor. There have been some very difficult cases in Northern Ireland in the past few years. The horrendous murder of Attracta Harron by an offender out on remission, now serving a life sentence with a whole life tariff, brought into sharp relief the need for a new form of prison sentence. Attracta's widower is present to listen to our proceedings, as he was during the Commons consideration of the order.
	There have been a number of sex offender cases where post-release supervision and monitoring has been difficult. The gaps in our laws were made abundantly clear. A sentence was needed for serious violent or sexual offences, whereby release would not be automatic, dangerousness would have to be assessed, release would be controlled and post-release supervision enhanced. This draft order delivers such sentences and 50 per cent remission will disappear as a result of the order.
	The order has three major themes: public protection; community safety; and improving the criminal justice system. On public protection, the order creates two new sentences to deal with dangerous sexual and violent offenders. One is indeterminate—the indeterminate custodial sentence, or the ICS. The offender would not get out of prison until it is safe for him to be released and could be on licence for the rest of his life. The other is an extended custodial sentence, or the ECS, whereby the offender serves his custodial part and is then subject to an extended licence period, not for life but for up to a potential maximum of eight years. Once convicted, a full risk assessment is completed and, if the offender is found dangerous, one or other of these sentences must be imposed. Release will involve the newly created parole commissioners for Northern Ireland. They will assess prisoners and have safety and public protection as the focus of their work. They will be fully independent of government. Through the public protection sentences and the changes to standard imprisonment, automatic 50 per cent remission for sentenced prisoners will disappear.
	On community safety, prisoners will be subject to statutory supervision in the community and to recall if they fail to comply with conditions. The powers to deal with and manage sex offenders in the community are enhanced. The Multi-Agency Sex Offender Risk Assessment and Management—the MASRAM process—will now become statutory. A range of agencies will be required to work together and share information to increase protection and reduce risk posed by sexual and violent offenders. Powers will allow electronic monitoring or tagging of offenders in the community. That could be as a bail condition, a licence condition, or as part of a community order. Post-release supervision will provide an important level of protection and reassurance to communities, but it also provides continuity in offender management and helps prisoners to resettle into community life. All these ensure that offenders are properly supervised, managed and rehabilitated.
	The order tackles areas of specific and current concern to communities. It deals with knife crime; improves alcohol laws and under-age drinking, so often causes of anti-social behaviour, and improves road traffic law. Knife crime powers deal with both possession and supply of knives and offensive weapons, creating a strong package of sentences of up to four years' imprisonment across the board. On alcohol, there are powers to deal with public drinking and the sale of alcohol to minors. Councils will be able to designate areas in consultation with police whereby drinking in public will be better regulated, and age restrictions on off-sales will be policed through a test purchase power. My honourable friend in the other place, Paul Goggins, has published guidance on how this will operate.
	During a period when I was a direct rule Minister in Northern Ireland and responsible in part for a policy on children and young people, I met with a group of young people who were on a week's community involvement. I do not need to say where, as it is not important, but they were from both of the communities. They had a week together in which to discuss art projects, sport and so on. I faced them for about an hour. It took me 10 minutes or so to get them going asking questions, but then I could not get out of the room, after the hour. I asked them what the message should be and what the key things were. They raised two issues with me, both of which I have referred to. One of them is highly relevant to what I have just said about alcohol. They argued about how they were described in the press and told me that they wanted to get rid of the blue plastic bags. That was the first time I had heard that phrase used about the off-licence unmarked plastic bags, which are almost there to encourage underage drinking. The only way in which to deal with this is to have test purposes to ensure that licensing rules are being followed. So off-licences and off-sales are on notice. As I say, the youngsters that I met demanded some action on that because it gave them a bad name and saw their compatriots led into bad ways.
	On road traffic, additional police powers to tackle drink driving, speeding and seizure of vehicles, such as quad bikes or motorised scooters which can be a plague in some estates or communities, are created in the order. Sentences have been increased for driving while disqualified or without insurance, two offences which frequently see multiple offences coming before the courts.
	On the criminal justice system, one of the order's aims is to ensure that the system works effectively and well. The right services and punishments need to be targeted at the right type of offender. We are expanding the police's powers to attach conditions to bail, and prison law is modernised in a number of areas. For example, 17 year-old girls will be able to go to the juvenile justice centre rather than be held in an adult prison. We are expanding the use of live video links between prisons and courts, improving flexibility around the execution of arrest warrants, and creating more efficient systems to deal with breach proceedings.
	Perhaps one of the most significant improvements will be the power of the court to impose a form of community sentence on those who default on a fine. For too long we have seen numerous fine defaulters end up in prison—something that I and some Members of another place have always considered a ludicrous proposition. You can get the money back other ways; imprisoning those people is a complete waste of resources and does not assist at all. So this is a very helpful change. Prisons should be for the more serious offenders and the supervised activity order, managed in the community by the Probation Service, will be constructive, restorative and more effective in dealing with the problem of fine default.
	Two further points about resources and choices are important. In the consultation exercise many people sought assurances that the system could cope with this very substantial package. I assure your Lordships' House that the package of proposals can and will be properly resourced. Almost £14 million has been allocated for implementation. That includes £5 million for prisons, probation and tagging. The Probation Service alone will be appointing over 50 additional probation officers.
	A dedicated implementation team will take forward the proposals. Public protection sentences and the appointment of parole commissioners will be our first and most urgent priority. They will be in place in a matter of weeks with other powers being rolled out over the next year or so.
	Public protection is one of the key aims that the order sets out to achieve but we also need to maintain perspective about what legislation can do. Offenders make choices—for better or worse. The system can help them with their choices, help them resettle, supervise them and, where appropriate, manage the risk they present. We can put the powers in place, require compliance and supervision and do all that we can to reduce the risk, but what we cannot do is guarantee an end to crime, nor, sad to say, can we guarantee an end to serious sexual or violent crime. However, we are confident that this package will succeed. It fills many of the gaps identified in the current law.
	The focus of my speech this evening has been on the main order. The consequential amendments order also before the House is by and large a short technical piece to allow the main provisions to work in a UK context. It adds reference to the parole commissioners into House of Commons disqualification law and includes them in freedom of information legislation requirements. It also allows the new licensing regimes to transfer across the United Kingdom and deals with the International Criminal Court.
	In conclusion, I am pleased to be bringing before your Lordships' House today this package of sentencing powers to deal with dangerous violent and sexual offenders; to strengthen post-release supervision across the board; and to remove 50 per cent remission. As I said, it has been widely consulted on, and has the support of Assembly Members in Northern Ireland. I hope the day is not too far away when they will deal with these issues themselves. The legislation is ready and has been consulted on and the people of Northern Ireland do not deserve to have it delayed. I commend this order and the subsequent order, which I will move at the appropriate time. I beg to move.

Moved, That the draft order laid before the House on 3 March be approved. 16threport from the Joint Committee on Statutory Instruments.—(Lord Rooker.)

Lord Glentoran: My Lords, I again thank the noble Lord, Lord Rooker, for presenting the order, which in some ways is particularly complex and difficult. It is virtually a Bill waiting to be enacted. I understand that even more clearly now than previously. Generally, we support it. It is a positive revision of the criminal justice process in Northern Ireland.
	When I was first faced with the order and its extremely comprehensive supporting documents, I thought, "Oh, God, we are back to the old days of trying to debate a Bill as an order in the dinner hour". However, as the noble Lord said, this is the first major instrument, whether a Bill or a statutory instrument, that has come here after being debated—I hope in detail—analysed and supported by the Northern Ireland Assembly.
	This is a very special moment, certainly for me after enduring 10 years of these wretched statutory instruments on which we have to try to make decisions on behalf of other people. From that point of view, this is a superb moment. I hope that this measure will bring us more into line with the UK's 2003 Act and that it will contain improvements because that Act has operated here for four years. I am sure that the officials who kindly briefed me this evening before we came into your Lordships' House will have made significant improvements to this statutory instrument.
	I strongly support almost all the major provisions, particularly the removal of the automatic 50 per cent remission. That will make a big difference to criminals who think that they will get 10 years' imprisonment but will be out in five years or perhaps fewer. I suspect that, in those circumstances, they tend to take life very much less seriously, not that I have any first-hand examples or even experience of that.
	The success of the statutory instrument will all depend on what resources not only the Government but the Northern Ireland Assembly make available. Undoubtedly, the prison population will increase as a result of the changes in the sentencing laws. I hope that the Minister will give the Government's estimate in that regard. I imagine that somebody has done some work on this. I heard the noble Lord mention two figures, £14 million and £5 million, but what is the total anticipated increase in the cost of these changes to the judicial processes? Where will the resources come from and who will ensure that they are available over the next three to five years, because this will not all happen at once? The order makes it clear that its measures are to be phased in over several years. I suspect that they probably will not become completely operative until such time as criminal justice is totally devolved to the Assembly.
	Where will the increased prison population be housed and how will it be housed? I believe there are plans to knock down and redevelop Maghaberry prison, which would remove quite a number of bed spaces—I do not know the number—in one fell swoop. The inhabitants of those bed spaces would have to be put up somewhere else. I want to be reassured—this is not criticism, as I do not want to criticise anything here—that the Government understand what resources will be required under this excellent piece of legislation that we shall pass tonight, that they know where they will come from and who will be responsible for delivering them. I support the order, which is a terrific piece of legislation.

Baroness Harris of Richmond: My Lords, I, too, thank the Minister for introducing the orders. Once again it falls to these Benches to be a little more robust in questioning him. We have only about 40 minutes to discuss this major piece of legislation. It is disappointing that such measures are not being introduced in primary legislation, although I accept that the Minister has engaged in long and detailed consultation on the issues in Northern Ireland. However, some of them are controversial. Prisoners also have rights and we must all recognise that, as it is the measure of a civilised and democratic society. Introducing indeterminate sentencing has proved to be highly problematic in England and Wales. Imprisonment for public protection—IPP—can be applied to 153 serious offences. That is a huge number when you compare it with the 11 offences that bring an automatic life sentence into effect.
	These provisions are being tested all the time. The Court of Appeal has said that courts should presume that anyone convicted of one of the offences, and who has previous convictions, is dangerous unless the conclusion reached would be unreasonable. At least a little sense has prevailed in the Northern Ireland legislation, for which I am grateful, in that there will be a minimum tariff of at least 12 months for an extended custodial sentence, an ECS, and a two-year minimum tariff for an indeterminate custodial sentence, an ICS.
	Will Northern Ireland be able to resource the IPPs better than appeared to be the case in England and Wales? That follows the remarks of the noble Lord, Lord Glentoran, about resourcing. An IPP can be compared with a life sentence in that it involves a minimum prison term, after which a prisoner has to undergo some behaviour management courses. Only then can he or she be released at the discretion of the Parole Board. The release is on licence for 10 years at least, it is under supervision and it takes place only if the Parole Board considers that it is safe to release that person.
	Can the Minister assure me that the courses offered in behaviour management will be sufficient in number and robust enough for people to demonstrate that they are fit for release? My noble friend Lady Linklater of Butterstone told us last year of a case in which she had been involved, which entailed a prisoner with a 28-day tariff being denied the courses that he needed to enable him to have a review by the Parole Board, because the courses simply were not available. What provisions have been put in place to ensure that this sort of thing will not happen in Northern Ireland? I understand that problems have also arisen in HMP Maghaberry and HMP Magilligan, because there have not been sufficient offending behaviour programmes or places available on courses there to meet the needs of prisoners. Has that situation changed?
	The Minister will know of the High Court decision in July last year that it was unlawful to hold prisoners when they could not access courses that were designed to address their offending behaviour and prove that they were fit for release. I understand that £40 million has been made available for the implementation of the new sentencing provisions. What will the breakdown of that money look like?
	On these Benches, we have always maintained that it is of primary importance to ensure that those in need of therapeutic care do not end up in prison. Will the Northern Ireland Prison Service be able to deal with the provisions of the order in terms of meeting the many and varied needs of those prisoners in custody for an indeterminate period who have physical and mental problems? Will it have the skills to enable it to prove that prisoners are safe to be released? Can the Minister say what work has been done in this area? Will the new sentencing and licensing arrangements be subject to review, as recommended by the Assembly's ad hoc committee that looked at these matters?
	I, too, welcome the supervised activity orders set out in Article 45. This is a good idea and is a good alternative to custody for fine defaulters. As the Minister said, the previous situation was always ridiculous. When I was a magistrate, I found the notion that one had to put people in prison because they defaulted on payment of a fine iniquitous. In Northern Ireland, between September 2005 and February 2007, 44 per cent of women who were sent to prison were there because they were fine defaulters. That cannot possibly be right.
	I hope that access to the provisions in these orders is uniformly administered. It would be iniquitous for them to be available in some places and not others. Is the probation service in Northern Ireland satisfied that it is being given sufficient resources to enable it to use these provisions equitably? The noble Lord, Lord Glentoran, made that point. The Assembly committee also recommended that sentencers be given adequate training in how to deal with indeterminate sentencing. Can the Minister assure us that that training is being given?
	Finally, I quote what the Northern Ireland Assembly's report on the draft Criminal Justice (Northern Ireland) Order said on youth justice, which is dealt with under Articles 94 to 98. The report states:
	"In relation to the juvenile justice provisions in Article 95, the Committee received evidence from Criminal Justice Inspection and NIACRO who thought that the Article as drafted put the emphasis the wrong way round as children would be referred to Hydebank Wood Young Offenders Centre where Inspectors regard the regime on offer as gravely inadequate. CJI believed that, on the contrary, the presumption should be that 17-year-old males should be sent to the Juvenile Justice Centre unless either there is no room for them there or they are so difficult to manage that the JJC cannot cope with them. Females under 18 should not, in any circumstances that CJI could envisage, be sent to Ash House".
	The Minister has indicated that females will, indeed, not go there. I am concerned about the young males and I would be grateful if the Minister would reflect on that matter.

Lord Maginnis of Drumglass: My Lords, I am perhaps less euphoric about this Order in Council than some other noble Lords. I believe that, while criminal justice continues to be the responsibility of the Westminster Parliament, whether that is for a long or a short period, primary legislation should be the vehicle used. For someone such as me who takes an interest in law and order matters but is not a lawyer, to be faced with a few moments to discuss a 95-page document is not heartening. It is not possible do deal with it adequately. I know that this order reflects the provisions of the Criminal Justice Act 2003. There is no acceptable reason why the public in Northern Ireland have had to wait five years for the protection of a sentencing regime designed to tackle dangerous offenders.
	I wish to move on quickly. I hope that dangerous offenders will, after they serve their sentences and are released from prison, not be part of the farce that has occurred in England and Wales, where serious offenders have, due to lack of resources, been released beyond their tariff without completing compulsory pre-release courses. That must not be repeated in Northern Ireland. However, I have serious fears that it will be repeated there. When Tony Blair was Prime Minister, we had many promises about what would ensue if we could achieve agreement and peace, yet the Police Service of Northern Ireland is underresourced. I am concerned with the management of the PSNI, but part of that is a result of underresourcing.
	A visitor to this House tonight mentioned that in the part of the country in which he lives—indeed, it is the case in the part of the country where I live—it is not possible for night-time patrols to be carried out as they should be because of a lack of resources. A lack of resources in policing is a very bad basis on which to try to consider devolution of policing and justice. I have made that point previously and I make it again. I hope that the Minister will reassure us about funding and how the whole issue of sentencing, of keeping people in prison and of getting people out of prison and back into the community will be financed.
	There are aspects of the order that I disagree with, including the test-purchase provisions on the sale of alcohol, which I find abhorrent. It is absolutely ridiculous that we will use underage children to carry out these test purchases in a community that remains unstable in terms of criminality. Can one imagine what will happen if it is learnt that little Joe Bloggs was the guy who led to someone being taken to court because he did the test purchasing for the police? He could well become a victim; he could well finish up being the sort of person who needs protection. The last thing that we want in a society where people have had to be protected against terrorists for years is to have vulnerable young people requiring protection against thugs and bullies. What reassurance can the Minister give me on that?
	On the subject of young people, the Minister knows well my interest in autism spectrum disorder. I wonder whether there is, within the context of this Bill, a consideration of those young people on the autism spectrum who accidentally, not understanding the situation, get themselves into confrontation with the police. I had an interesting and productive meeting with senior officials from the Prison Service about a review of autism services that I am involved with; I was very heartened by the enthusiasm that the Prison Service showed for something being done in relation to these vulnerable young people. I had a similar meeting with the PSNI and suffice it to say that I was not enamoured by the reception that I received. I ask the Minister to ensure that, in terms of justice, there is protection for those young people who are vulnerable.
	I will leave it there because of time, except to say one final thing. Devolution of policing and justice to Northern Ireland cannot occur successfully unless this whole broad perspective of law and order is taken into account.

Lord Bew: My Lords, I commend the Minister for bringing the order before the House. There is considerable public concern about this matter in Northern Ireland, where 35,000 people signed a petition bearing on the central issues of this new legislation. As he rightly said, there is in the Assembly cross-party consensus, articulated most firmly by the chairman of the ad hoc committee, Mr Alban Maginness, in favour of what the Government are now doing. The Government are living up to their responsibilities. It has been a long time coming, as the noble Lord, Lord Maginnis, said, but it has now, thank heavens, come.
	It is also worth saying that the Government have resisted the temptation to play politics with this issue. They have acted on what, as the Minister said in the last few sentences of his speech, are in the interests of the people of Northern Ireland at the moment. There is a certain grim symbolism in the fact that this legislation comes to this Chamber tonight, a few days short of the time that was originally projected in the St Andrews agreement for the devolution of our policing and justice powers to Northern Ireland. There is a tacit acceptance by the Government that that will not happen in the immediate future. They have taken on the responsibility themselves and not used that broader issue as an excuse for delay. That is an important and valuable thing.
	It is true the Northern Ireland Assembly has worked closely with the Government on this, but it is disappointing that it is not able to deal with the matter itself. The fact that Sir David Varney has been asked now to look at competitiveness in the Northern Irish economy looks like another example of the Assembly outsourcing problems back to London. All noble Lords in this House wish the Assembly well and we are glad that it has worked actively in response to the really genuine moves in public opinion in Northern Ireland on this matter. It is disappointing that the Assembly is not in the position yet to deal with this matter, but it is good that the Government have dealt with it.
	Finally, there is perhaps a small glitch in the Criminal Justice (Northern Ireland Consequential Amendments) Order. At the bottom of the first page, there is a reference to the Parole Commissioner for Northern Ireland in the singular, whereas in the middle of the next page there is a reference to commissioners in the plural. I cannot see that there is any good reason for that. It should be either singular or plural in both cases. It looks like there is a small and tiny glitch there, the only glitch in what seems to be some quite exceptionally good Civil Service work.

Lord Lyell: My Lords, I hesitate to intervene. I hope the Minister will tolerate what I want to ask him. I glanced through the order. Article 20 deals with the power to release certain prisoners on compassionate grounds. That is how the article is headed. I hope your Lordships will bear with me for half a minute. During my time in Northern Ireland I received a call when I was the duty Minister. One of the prisoners wished to have compassionate release for a short period because his mother was not well. I had not had the kind of briefing that the Minister has had as security and prisons and such things were not within my remit. I had had a general briefing but not on how to deal with a specific instance of this type. I received advice from the prisons sector that this leave for compassionate release for a short period overnight should not be granted to this prisoner. Others advised me that it was safe. I was advised that such release was workable. If somebody abused this granting of compassionate leave, the next time compassionate leave was requested, there might be more problems. I was somewhat startled to receive a message that had come through from my department that, unfortunately, the prisoner's mother had died but that enormous happiness was given by the fact that the young man was able to be present. Specific instructions were given to me; everyone knew the drill and it seemed to work well.
	If the Minister glances at Article 20(2), he will see that it states,
	"consult the Parole Commissioners unless the circumstances are such".
	I did not have the occasion to consult higher authority in any major detail in those circumstances, but it worked. I hope that such compassionate leave can and will be granted in future.
	I also glanced further on in the order. Article 65 concerns:
	"Seizure of vehicles used in a manner causing alarm, distress or annoyance".
	I seem to remember that 40 years ago, musical horns in motor cars were very popular. Indeed, I seem to remember that one small car used to parade around London. It had a happy number plate that was, as the Army would put it, Foxtrot Unicorn 2. I leave your Lordships to discuss what that might mean. The young gentleman who owned that car had a musical horn that played melodies. Other people would gesture to him, which I understand caused more accidents. Musical horns are banned in Great Britain. I hope that the same applies to Northern Ireland.
	One other system occurred to me. In summer, certainly in Scotland—I suspect in England; I do not know about Northern Ireland—ice cream vans tour various areas playing musical chimes. It just occurred to me, being of a somewhat quixotic nature, that such melodies may well be unwelcome in some areas and that melodies advertising the proximity of ice cream sales could well cause either deliberate or unwitting annoyance. Perhaps the noble Lord will write to me about that case.
	If the Minister could advise me this evening very briefly on Article 20, I should be very grateful. I humbly congratulate him on putting this order through so well and succinctly tonight.

Lord Laird: My Lords, I join other noble Lords in thanking the Minister for his explanation of the orders and in giving the orders a broad welcome. It is good that that they will bring the legislation in Northern Ireland broadly into line with the rest of the United Kingdom. There has been considerable demand in Northern Ireland for a review of sentencing. Every time that someone has unfortunately been killed by a joyrider or a drunken person, there has been considerable clamour when the defendant who is found guilty gets an extremely light sentence.
	I join the Minister in recognising that we have in the House tonight Attracta Harron's widower. It is becumbent on us all to recognise the tremendous dignity that the Harron family had in their tragic loss of their mother in dreadful circumstances. It is also fair to point out that had the person who has been convicted for that murder, Trevor Hamilton, not been released early from prison, had he been tagged or had there been supervision, Attracta Harron could very well be alive tonight. In other words, if the order had been in place, Attracta Harron could be alive tonight.
	I shall make a couple of quick points, because time is going on. It is not easy to talk about security issues for Northern Ireland over here. I am still very concerned about the lack of prosecutions because of political interest. I am concerned about a recent statement from the Forensic Science Agency, which said that it now has the techniques for DNA testing that mean that it could go through the entire arsenal of rifles, guns and other machinery that have been taken off paramilitaries through crimes during the past 30 years and could identify an awful lot of people and evidence. Unfortunately, I see no evidence of that being taken up by the Historic Inquiries Team, which seems strangely reluctant to involve its colleagues in the art of DNA science to find out who used those guns, and so on. The people who look at the DNA are plugged into an extremely advanced computer system—possibly one of the most advanced in the world—which can identify people immediately from the DNA and indicate where they were on certain nights.
	I am also concerned about the ongoing lack of prosecutions for fuel laundering and other fuel offences. The Government's own figures for a number of months ago indicate that in Northern Ireland the Government lose taxes at the rate of £365 million per year because of fuel laundering, mostly in South Armagh. That is £1 million per day. I think of the number of hospitals and other things that the Government and the Executive of Northern Ireland could fund with that money. We see very few people who have been made amenable to fuel laundering. I do not expect the Minister to answer these questions today. I will probably pursue these things through Parliamentary Questions in due course.
	My Lords, I most grateful for the general response to the order and I will do my best to answer all the points that have been raised. I would say at the outset that I do not think that the noble Lord, Lord Lyell, need apologise for speaking in these debates. Given his track record as a direct rule Minister in Northern Ireland, they were still talking about him when I was there and it was all good. I had an easy time compared to my predecessors in respect of direct-rule duties.
	I will come on to these specific questions. I will try to go through them in order and try not to repeat myself. With regard to resources, approximately £14 million worth of costs has been allocated. Of this £4.7 million goes to prisons, £6 million to probation and something over £3 million to support structures for the parole commissioners, executive release and recall and electronic monitoring. Funding to the probation board will ensure effective risk assessment and supervision of offenders. It will include a recruitment of 55 front-line staff. We are confident that the package of measures will be properly resourced.
	I was asked a couple of times whether we had learnt the lessons about problems in England or Wales. The prison service has been fully engaged in the resource package. An additional £70 million has been set aside to provide an additional 400 cell spaces by the year 2011. The additional resources for the sentencing framework are to build on the existing risk management and programme delivery provision. The prisons would have been getting these offenders anyway under the existing sentencing framework. A new prison will be built at the Magilligan facility. There will be redevelopment there and new places.
	I was asked specifically about the figures. These are the best estimates we have at present. We anticipate that the new framework will lead over time to a net increase of some 60 to 65 in the average prison population. Initially we think that the impact on the population will be minimal but by 2021 the increasing impact will level off at a gross increase of about 160 in the average population. At the same time, however, counterbalancing measures, electronic monitoring and fine default alternatives will have an effect. That 160 is a gross figure. It is not a large increase but certainly there is potential for offenders to be kept in prison longer. Over 10 to 15 years this will lead to that increase in the prison population.
	The noble Baroness, Lady Harris of Richmond, asked about the availability of participation programmes. The prisons are already delivering offender behaviour programmes. The additional resource of almost £5 million is to build on and extend that provision. She is right to say the probation and prison services are working closely together to develop a strategy, although she concentrated almost exclusively on prisoners' rights. They do have rights but at the beginning and end of time it is the victims and stable communities we are trying to help. We need to lock up the right people not the wrong people. We also need to keep them locked up for as long as necessary to protect society. However, as the noble Baroness said, they do have rights.
	In prison the offenders cannot be forced to participate in programmes but it will be in their interest to do so. We need to change their behaviour. If they want to demonstrate to the parole commissioners that they are fit for release that is their choice. Once released, if participation in programmes is part of the licence condition then non-compliance could result in immediate recall to custody.
	The noble Baroness asked about the presumption of dangerousness. This has been removed from our powers. It still exists in the England and Wales criminal justice legislation, but as she probably knows better than I, it is being removed by way of the Criminal Justice and Immigration Bill currently before your Lordships' House. She also asked whether the sentencing and licensing arrangements are subject to review, and I can tell her that they are. It is proper for such a substantial change in the sentencing framework to be kept under review, and the security Minister is committed to reviewing the position in the Commons debate held yesterday, so it is on the record.
	The noble Baroness asked about the delivery of supervised activity orders and resources for probation services. I hope that I have covered those areas. We are fully engaged on the costings and we shall probably get more information on supervised activity orders in the summer. The programme will be rolled out along with a package of other measures. This is not all going to happen overnight.
	Lessons have been learnt. We have built adjustments into the provisions to ensure that Northern Ireland gets the benefit of the experience of England and Wales. We are making the new sentences available in the Crown Court. They will focus on the most serious offences and will not draw in the magistrates' court. We are allowing judges the discretion to choose between the two types of public protection sentence and we are making no presumption of risk where there are previous convictions for specified offences. The sentence will be imposed on the basis of a rigorous risk assessment.
	The noble Baroness put one question to me for which I suspect I do not have an answer that will satisfy her, and that relates to 17 year-olds. As I made clear, females aged 17 will not go to prison. However, given the significantly high number of 17 year-olds in relation to other groups in the youth justice system, we believe that to attempt to accommodate them in the juvenile justice centre would not only be impractical but have the effect of skewing the age range disproportionately, thereby distorting the regime for the younger children already being accommodated in the centre. There is only one juvenile justice centre in Northern Ireland, and there is a requirement to retain some capacity in order to be flexible enough to respond to fluctuating numbers. Reversing the proposal would make the current system unworkable and unmanageable. If all 17 year-olds were to be accommodated in the centre, it would be constantly full, with the high probability that the very young children there would be sent elsewhere, or other young people already settled in the centre, would have to be displaced.

Baroness Harris of Richmond: My Lords, I am grateful to the Minister for giving way. He said in his peroration that a lot of money was being put towards creating more prison places in Northern Ireland. Why cannot a further JJC be adapted for young males of 17 who clearly are more numerous than can be looked after in the existing institution? That would be a good use of the money.

Lord Rooker: My Lords, as I listened to the noble Baroness, it crossed my mind that that is a very obvious point. There probably is a response and I shall write to her, because her question is reasonable.
	I turn to the statistics. Between 2005 and 2007, 23 girls aged 17 were held in women's prisons. I do not dismiss the figure; I am just giving the House the information. I mentioned that the consultation process had been lengthy in response to complaints that this has taken a long time, and I fully accept that. But I also make the point that now we have these provisions ready, the people of Northern Ireland are entitled to benefit from them.
	I can deal with some of the issues raised by the noble Lord, Lord Maginnis, but I shall have to write to him on others. The noble Lord gave examples to demonstrate why he is opposed to test purchase powers, but these powers are not new. They already exist around tobacco and solvent abuse for the purpose of protecting young people, and I am fairly confident about them. The vociferousness of the youngsters who raised the issue with me and the fact that it can be carefully managed gives me confidence, although I understand that some people might be placed in a difficult position. However, the noble Lord, Lord Maginnis, has fired a warning shot, and therefore those who operate the system will have to be incredibly careful and ensure that it is well managed. It is not entrapment, but legitimate crime detection. Off-licence sellers of alcohol have to be put on notice that selling to underage youngsters will get them in real trouble and put them at risk of losing their livelihood. Our priority is to reduce such sales. We can give warnings and advance notice of schemes in an area, and we can issue warnings for initial non-compliance. The participants will not mislead licence holders. It is a perfectly legitimate procedure and is used in other circumstances to protect young people.
	The noble Lord rightly raised important points about vulnerable young offenders. The system already allows the police considerable discretion and we know that they operate with these factors in mind. Within this order are specific requirements should such young people come to court. This is important in relation to inquiry, mental health and other medical reports, which will also ensure that prosecutions are brought appropriately. No doubt the defence and the prosecution will have to take account of this, as will judges. The noble Lord raised a fair point.
	I am very grateful for all the supportive comments. I cannot go through everything in detail, but I am very grateful. The noble Lord, Lord Bew, did not quite use the word, but he implied that the Assembly was subcontracting some of its work. I do not think it is that. Having been so long without the process, it makes sense to use the best possible help and advice around because it wants to make early progress. It wants some wins for the people of Northern Ireland to show that devolution makes a difference to people's lives. I cannot comment on the help and assistance it has requested, but I think that that is its judgment. When the Assembly becomes more stable and more mature in the process of legislation, I am sure more can be done in-house. The noble Lord also asked about the consequential amendment order. I am advised that the references are correct and we will write to confirm this, so the point is well made.
	The noble Lord, Lord Lyell, asked about the compassionate release power. It will continue to build on the temporary release powers that correctly exist to allow short-term release. I fully accept his point. He gave a very good example of the difficulty for a Minister asked to make a decision, probably within a few hours, and receiving conflicting advice. It is not his day job; he is the duty Minister, covering for others. That is the dilemma. I suppose that in some ways that is what Ministers are for—a judgment has to be made. In this case it was made successfully, but it would not have been unsuccessful if it had gone wrong. You have to make a judgment and then be responsible for it.
	Prisoners can get out temporarily for urgent family matters, subject to risk assessment, and that would have been the case there. But it is a compassionate power and can allow for example, terminally ill prisoners to be dealt with in a compassionate way. It is a package around the whole process.
	On the noble Lord's final point, I can say with all the certainty that my note allows me that musical horns are banned in Northern Ireland so there should be no difficulty.
	The noble Lord, Lord Laird, raised the issue of prosecutions. He raised some examples, but that is a matter for the prosecution authorities. They are independent and are not responsible for operational matters relating to us. He said that he would pursue this via Questions for Written Answer, as he is entitled to do.
	I hope that I have covered all the other issues that I have written down. I am very grateful for the support and to all the people who participated in this, because this has taken several years. Literally hundreds of people were involved in the consultation, leaving aside the vast petition in Northern Ireland.

On Question, Motion agreed to.

Criminal Justice (Northern Ireland Consequential Amendments) Order 2008

Lord Rooker: My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the draft order laid before the House on 3 March be approved. 16th Report from the Joint Committee on Statutory Instruments.—(Lord Rooker.)
	On Question, Motion agreed to.

European Union (Amendment) Bill

House again in Committee on Clause 2, Amendment No. 9.

Lord Stoddart of Swindon: This concerns a very important new provision in the treaty. We should make no mistake about it: it is a further step on the way to creating a centralised European state. There can be no other reason for it. Indeed, from the point of view of the smaller nations, it is a retrograde step; with a rotating presidency, at least they have a turn at that office. I am not at all sure that from now on they will ever have a turn at holding the presidency of the European Union.
	In history, whenever an office such as this—a chairman of something—has been set up, it has always evolved. The chairman wants more power and the members want to give him more power because, if he has more power, there is less for them to do. Therefore, all history shows that, once you give senior office to people, the whole thing tends to develop into a new power centre. If people do not believe that, they should look at the development of the European Parliament. I think that the European Parliament came into existence under the Single European Act but before then it had been a European Assembly. Until 1977, it was not a directly elected assembly but a representative body of the national parliaments. However, as soon as it became directly elected, as some of us predicted, it became more powerful. It was renamed as a parliament, and in each treaty since the Single European Act the European Parliament has accreted to itself, or has been given, new powers so that it has become a much more important part of the European Union. Indeed, only this afternoon, just before this debate, we saw that it had accrued new powers under this treaty.
	As I said, all history shows that once you make an office permanent—indeed, when you create an office for which you do not immediately know what the powers will be—there is every incentive to build that office into a very powerful position. We are being asked to give permission to a pig in a poke. We do not know what powers will be exercised by the new president. We know that he will try to accrue more powers to himself and, of course, the ultimate aim will be an elected president by universal suffrage. That is the end product and it is what the new president and the people who believe in a united federal state of Europe want. I appreciate that there is nothing wrong with that. I do not want it; nevertheless, that is what it is all about. This evening, we are being asked to create a permanent presidency or semi-permanent presidency or whatever it is called—it will, at any rate, last for up to five years—and certainly for the first two and a half years the president will build up his position so that he gets elected for another two and a half years. We have seen it all before.
	I feel sure that the noble Baroness will reassure me on this. She will say, "Of course, the British Government do not believe any of this at all. They simply think that, as we heard earlier, it will be a more efficient way of driving things forward". However, I do not want things to be driven forward. Nevertheless, that is what we will be told the role is about. At present, however, we are aware that private discussions are going on about the role of the presidency. Some pretty powerful people believe that it should be a leading role and that the president should in fact act like one, not like a lord mayor. Our former Prime Minister foresaw this position as being one where the President of the European Council spoke for Europe on the world stage—quite clearly, a powerful post indeed.
	Noble Lords will have seen that when Mr Blair's name was put forward for the post of president, he quite clearly said that he would consider accepting the position only if it were a powerful one. He did not want any sort of job that was simply meeting people or holding banquets and what have you for visiting diplomats or heads of state. He sees it, as he saw it at the beginning, as a powerful position—one that will get more powerful as time goes on. The Prime Minister of Belgium certainly sees the position as very powerful, and has said as much. I believe that he is a candidate as well. He has said that if he gets into the job, he will be trying to make it very important indeed.
	People know my position on the European Union. It has always been made plain. I agree with nothing that enhances its reputation and powers. I believe that a president will do that, therefore I am against it.

Lord Tomlinson: Ha!

Lord Stoddart of Swindon: The noble Lord, Lord Tomlinson, finds that funny. At this time of night, I am glad to be acting as a bit of a comic.

Lord Tomlinson: I can reassure the noble Lord, Lord Stoddart, that I did not find it funny. I found it pathetic and risible; that is why I was laughing.

Lord Stoddart of Swindon: Well, some of us find that the noble Lord's position on the European Union has always been rather dangerous for this country. I would probably prefer to be risible rather than dangerous. However, we have known each other a long time, and we know each other's position. We can probably carry on without any name-calling. The noble Baroness knows my position. I believe that this is a retrograde step and I therefore support the amendment.

Lord Dykes: I assume that it is a coincidence that the amendment proposed by the Tory spokesman was—like Amendment No. 89 in the Commons; and I got the date wrong, it was 30 January—also moved in the Commons in the name of Mr William Cash and Mr John Redwood, as Amendment No. 90 on page 564. So the Vulcan strikes again, with many interesting suggestions about changes.

Lord Forsyth of Drumlean: As the noble Lord is making such a study of amendments in the House of Commons, why does he not table the amendment that his leader could not table there, but which could be tabled in this House, allowing for a referendum on "in or out"?

Lord Dykes: It is necessary to speak to the amendments on these occasions, otherwise we will digress and go back into a Second Reading debate. As the noble Lord knows—

Lord Pearson of Rannoch: Does the noble Lord—

Lord Dykes: When I am dealing with an intervention, I should have a chance to finish. I never know about the propriety of automatically giving way. I suppose that it is not absolutely necessary in Committee, as far as I know. The Companion is being produced again to remind us of the relevant clause, and I will gladly give way if the Minister wishes to remind the Committee again about it.

Baroness Ashton of Upholland: From memory, there is no obligation on a Member to give way. However, the tradition of your Lordships' House has been that noble Lords do give way. The noble Lord did give way and I am not sure that he needs to continue to do so.

Lord Dykes: I am grateful for that explanation. That was my understanding. I would be delighted to give way to the noble Lord, Lord Pearson, but for reasons of time I will not do so. It is getting late and I shall be very brief. As the Conservative Party in the Lords and UKIP have been conferring frequently on these matters—that is a normal procedure and I do not object to it—I know that the noble Lord, Lord Pearson, will make precisely the same point as the one just made by the noble Lord, Lord Forsyth.
	We on these Benches regret that Amendment No. 9 has been tabled. The adjective used has changed over a short time. Those of us who are interested in philology will reflect on the changes in language over time. For instance, in English, the words "thank you" have now been replaced by the word "cheers", which now means "thank you" on all occasions. When you are getting out of a taxi and saying goodbye to the driver you say "cheers" rather than "thank you". That has taken probably about nine years to evolve.
	In this case, the adjective for the nature, quality and texture of the amendments from our Tory colleagues last Tuesday—the first allotted day of the Committee of the whole House—was always that the amendments were "probing", whereas in the Commons the text was always presented as "wrecking" amendments. So the adjective "probing" has evolved from "wrecking" in the space of four weeks. That demonstrates how language can change rapidly depending on the examples provided.
	We believe that the amendment would be destructive and we hope it will not be taken further. The creation of this post will be important for the future progress of the enlarged and complicated European Union of 27 member states. The important change envisaged is the creation of the post of a new full-time president for a first period of two-and-a-half years, renewable by only one similar period, making up to five years for the same individual. This would be the person to drive forward—a phrase which was also used by the noble Lord, Lord Stoddart, though he does not approve of it—the European Union policies. I use the modern phraseology "drive forward" because the European Union needs a powerful and respected figure as president to drive forward the agreed consensus policies of the sovereign member states. That is what it is in essence, and that is what it will remain in the future—in this highly non-federal, unfederalistic European Union.
	The European Union is a modern creation which is not easy to describe in the context of the history of political and state structures. It is a unique body, sui generis in every way; a Union of sovereign member states. The member states will inevitably allocate to individuals, and to the central institutions which were freely and happily adopted by them, a considerable amount of discretion and intrinsic power, of whatever nature, in the actualité of how the role unfolds in the future. Logically, we do not know what that will be because it is a new post and many details will have to be discussed when and if the treaty is ratified by all the member states, which could take up until the end of this year.
	There is currently a President of the European Council but that position has been weakened in the increasingly enlarged community. All the people involved in it have repeatedly said in recent years that the troika system has not been able to function effectively and that the six-month period for an individual chairman of the Council of Ministers and the European Council has not produced sufficient results. It is a complex exercise and this new creation is necessary.
	Amendment No. 9 is negative because it seeks to remove the role of the President of the European Council in external representation of the European Union. The President of the European Council now has the role of representing the EU externally. A good example is that Slovenia will lead the EU-Japan summit later this month.
	For all those reasons we hope the amendment will not make progress tonight and that other members of the Committee will endorse that view.

Lord Hannay of Chiswick: I am a bit puzzled by the debate so far, because it is not at all clear what it is about. I would have got the impression from the noble Lord, Lord Howell, that the amendment would remove the presidency of the European Council altogether, but when I look at the Marshalled List I see that it does not have that effect at all; it merely removes the external function of the President of the European Council. But many of the speeches, including that by the noble Lord, Lord Stoddart, implied that they wanted nothing to do with the President of the European Council at all.
	It is also being suggested that the President of the Commission might at the same time become President of the European Council despite the fact that the treaty says:
	"Members of the Commission may not, during their term of office, engage in any other occupation".
	That seems to me to debar totally the President of the Commission becoming at the same time President of the European Council. The noble Lord, Lord Stoddart, seems to think that the rotating presidency has been abolished. But it has not abolished. It has been abolished only in the external representation of the European Union, not in the running of all the Council formations that deal with domestic policy. So he will still be there.
	The noble Lord, Lord Howell, said that he did not want a cult of celebrity. I pinched myself then when I thought that, in two months' time, the possibly last holder of the rotating presidency, Monsieur Nicolas Sarkozy, is going to become the President of the European Union. If you do not get that point, I shall not go any further. But I think that celebrity is a word that might spring to mind in that context.
	I hope this amendment will not be pursued. I think that giving an external job to the President of the European Council makes sense. If we did not have that, we would have the President of the Commission alone doing it. I cannot believe that that is what those proposing the amendment want. They presumably want the Council and the member states to be in the forefront of all the summit meetings with Russia, China, the United States and so forth. But if they remove the President of the European Union, then they will leave only the high representative, who will be one level down from the President of the Commission in that respect, who will be his president.
	I do not think that the amendment is very well thought through. Although I would agree that the deconfliction of the jobs of President of the European Council and the high representative will be an important part of the implementation of the treaty once it has been agreed and ratified, I think that, on the whole, the outcome will be a positive one, particularly because, if you think about it, the rotating presidency in the external field no longer makes much sense. There are 27 member states, probably 28 or 29 fairly soon. That means that you get the presidency once every 14 years, with no continuity and with countries such as Malta or Cyprus holding the post. The mind boggles a little bit about all that. There is no external representation anywhere around the world. I do not think that it makes any sense. This change is a timely one. I therefore hope that we will not insist on pursuing the amendment.

Viscount Trenchard: I support my noble friend Lord Howell in his amendment. The noble Lord, Lord Hannay, has just tried to clarify the role of the President of the European Council, as envisaged, and that of the apparently not-so-high representative for foreign affairs, who is also envisaged. I wonder how the overlap between their roles would be dealt with. As my noble friend Lord Howell said, we have heard much too little about how that will work out in practice.
	However, I also thought that the noble Lord, Lord Hannay, was most helpful in explaining that the permanent President of the European Council is indeed not intended to make the Union more efficient but to make it more effective. That is exactly what I feared. It seems to me that the corollary of the fact that the President of the European Council will be made more effective is that the Heads of Government of the 27 member states will be made less effective. That does not matter for the Heads of Government of the countries that punch below their weight on the world stage, but it does matter for those that punch above their weight on the world stage. Having spent 14 or 15 years working in Japan, I have seen that, in Japanese eyes, the United Kingdom has continually punched above its weight on the world stage. I suspect that the same is true in Korea, China and other countries that I have visited.
	The noble Lord, Lord Hannay, says that we cannot go on with a rotating presidency involving 27 members. I do not see why we cannot. Indeed, it is important to ensure that we do not have a permanent president because that would make the EU into a country, which means that the United Kingdom would be less effective because it would become less of a country; it would be less clearly seen as such.

Lord Sewel: Hang on. The argument is that having a permanent presidency makes the EU into a country. I am a member of a number of associations and organisations that have permanent presidencies and they are not countries. My local cricket club has a permanent secretary, and that is not a country.

Viscount Trenchard: The association the noble Lord referred to does not send ambassadors with credentials to be received by Heads of State of other countries. That is the difference.
	We have not heard clearly, for example, who ranks first: the Head of State of any particular country in the Union or the new President of the European Council—who will always be referred to colloquially as "the President of Europe", of that there is no doubt. We have to be very worried that by enabling the treaty to be ratified and to create the post of permanent President of the European Union, we will reduce the ability of our own Head of Government to act on the world stage with the effectiveness that he undoubtedly has. We as a country are seen throughout the world as having on the whole done more good than harm; a country that punches above its weight in diplomacy, defence, business and many other areas. If we reduce ourselves to the status of a member state of what is, whether we like it or not, bound to emerge into a federated state, we will reduce our ability to exert our influence in the world in the way that we have done through the ages.

Baroness Quin: I listened carefully to the speech made by the noble Lord, Lord Howell, in introducing his amendment and I shall make one or two comments on it. I agree with those noble Lords who have said that in many ways the provision in the Bill is useful because it provides some continuity, which is needed at European Council level. It also helps to reduce the pressure, not only on small countries but on those countries in particular, from the burden that is otherwise imposed by the current presidential system.
	The provision has another benefit. In terms of ministerial representation on the European Council, it will mean that the Council will be chaired by the new president rather than by a head of government of one of the participating countries, which has always been a rather strange factor in negotiation because the president of the presiding country has somehow had to be above the political discussions while often coming from a country with strong political views on the subject being considered. The political representation of that country has therefore had to be delegated to a more junior level. Having been a junior Minister, I am not sure that that is necessarily a bad thing, but the new arrangements provide parity between all the participating countries in the European Council in a way that will be helpful in the future.
	The noble Lord who has just sat down talked of his concerns about the role of the president, but it seems to me that it is clearly laid down that the president is appointed by, and accountable to, the European Council. Therefore, the president would be speaking on issues, or representing the Council, in those areas where there was an agreed position. I do not see that as a threat to the many areas in which Britain operates independently. It does not represent a threat in all those areas of foreign policy where sometimes, rather sadly, it has not been possible to have an agreed common position. For those reasons, too, we should welcome what is being proposed on practical grounds, rather than be alarmed about it on the grounds mentioned a few minutes ago.
	Finally, I notice that the noble Lord, Lord Howell, in speaking to his amendment, praised Switzerland greatly. Switzerland was, I think, the last democracy to introduce votes for women, as late as 1971, and for that reason I could not go along with all his comments. I have to say, too, that the European Union has been very much a champion of women's equality and women's rights in all the directives that it has put forward since it came into being. For that reason as well, even though I like Switzerland, I have doubts about the examples that he used. I hope that the amendment will not succeed and I welcome the provision in the Bill.

Lord Forsyth of Drumlean: I thought that the noble Baroness was going to express dissatisfaction with Switzerland because of its commitment to referenda as a means of determining policy.
	I intervene briefly to say how much I support my noble friend's amendment. I found the speech of the noble Lord, Lord Hannay, very revealing, because he is looking at this from the perspective of creating an entity. My noble friend Lord Trenchard said that to create a presidency was to view Europe as a country and not as a set of nation states. I think that what my noble friend Lord Howell said about celebrity was not a flippant point. If we create a president who represents the Community externally, especially if it turns out to be President Blair, he would use that office and all his talents to become a figure on the world stage. What I find difficult about the argument of the noble Lord, Lord Hannay, is that, on the one hand, we have to give up many of our vetoes, because apparently it is impossible to get agreement when you have such a large number of member states forming the Community, but, on the other hand, apparently it is okay to have a president representing the views of the Community externally that somehow are going to be agreed magically without having that requirement.
	I think of the crises that have beset us of late. I personally opposed the invasion of Iraq, but I wonder, if we had a world figure, a president of Europe, representing our views, quite how he would have managed the chaos that we saw in Europe at the time of the invasion of Iraq. We can think back to the Falklands and many other examples of where it has not been possible for Europe to form a view. The serious point that I want to make is that this is yet another example of the elite in Europe trying to force the pace of political integration too quickly. If it does that, it will damage the Union.

Lord Roper: The noble Lord suggested some time ago that the president would represent the views of Europe externally and that these would be arrived at by QMV. However, he must be aware that external policy—the CFSP, or common foreign and security policy—is still an intergovernmental matter and therefore has to be decided by unanimity.

Lord Forsyth of Drumlean: I am sorry if I put it badly and misled the noble Lord, but that is the very point that I was making: if we need a presidency in order to represent views that are unanimous in Europe, how is that consistent with the argument for giving up 60 of our vetoes on the ground that Europe has now become so large that it would not be possible to get unanimity on important issues? There is a contradiction here. On the one hand, we have the idea that we have all to surrender our vetoes to get agreement with so many member states; on the other, we must have this new figure to represent Europe's view, which will apparently be easily achieved by unanimity.
	I used the examples of the Falklands and the invasion of Iraq to show that it is extremely difficult to get agreement. If you create an international figure whose role it is to explain that he has nothing to say because there is no agreement, that will damage Europe's standing in the world. Where there is dissent within the Community, member states will see the institution failing to represent their views and that will be damaging to the Community, whereas the current system has the advantage that no one is able to become a figure representing the views of Europe externally with any degree of continuity.
	We should listen to the wise words of the noble Lord, Lord Stoddart. I am sorry that the noble Lord, Lord Robertson of Port Ellen, is not in his place, but I will long cherish his statement that devolution would kill nationalism stone dead. The idea was that, by creating a First Minister and a body, nationalism would stay in its place. The noble Baroness the Leader of the House is giving me a look that says, "Aren't you getting a bit wide here?". The noble Lord, Lord Stoddart, spoke about creating an institution or a position. I give as an example not just the present Scottish First Minister, who is a nationalist, but his Labour predecessor, who decided to have his own foreign policy. We had an aid programme to Malawi; I think that he has now become the high commissioner to Malawi. The Parliament takes more and more powers. The role of First Minister has been developed way beyond even the functions of the Secretary of State in the old days. The noble Lord, Lord Stoddart, is quite right: once you create a post of this kind, it will develop its own momentum and create tensions and divisions within the Community. Those who support the European Union, who are perhaps more ambitious than I would be for its role, would do well to recognise that they are sowing the seeds of the destruction of the institution that they wish to support.
	The criticism made by the noble Lord, Lord Dykes, of my noble friend's amendments and what is done in another place would carry more weight if he and his party had put down any amendments whatever in this debate, particularly on what his leader said this week on the "Today" programme that he longed to have debated. Why has it not been put down? I think that we know the answer to that.

Lord Maclennan of Rogart: In introducing this debate, the noble Lord, Lord Howell, indicated that he regarded it as very important. He expressed the hope that it would be a long debate. I have not quite shared that hope and I am conscious that I am intervening rather close to the end of the debate, but I would not like the balance to be struck as it has been up to now.
	A number of speakers have indicated that opposition to this proposal rests on the hope that the Council will not work. That was explicitly stated by the noble Lord, Lord Stoddart; it has just been stated by implication by the noble Lord who has resumed his seat. I can understand these sorts of amendments being tabled and discussed by those who want to destroy the effectiveness of the Union. The candour of the noble Lord, Lord Stoddart, is welcome in revealing what this is all about. It is an attempt to wreck the Union, dressed up with constitutional niceties and doubts about how the office might develop.
	The actuality is that the Union has not, throughout its history, punched according to its weight. To the noble Viscount, Lord Trenchard, I say that that is what we ought to be seeking to do. If the Union has a view, which is arrived at by unanimity in the Council, is it not desirable that that view be represented effectively overseas? Is it not appropriate to have somebody who is there for more than six months and who is recognised in the world with which we have to do business as being an effective spokesman for that policy?
	Some of the odder things that I have encountered in the Select Committee—I have to say that it has been a very interesting experience; it has been a great privilege to serve on it—have been the reports that have come from the country that has been occupying the presidency for six months, in which we have had reports on presidential priorities often with an attempt to indicate some particularity of view by the six-month incumbent. This is about seeking to ensure that the presidency represents the views of the Union, arrived at by unanimous agreement and not by a sort of ducking and weaving around particular interests of a transient president who feels that his or her country has to be given its place in the sun while this is going on.
	We have to recognise that, if we belong to this organisation and it is to be more than a charade on the international stage, we need the kind of continuity that this office will help to provide. We need the kind of continuing heavyweight work from a chairman who can pull together the priorities on an ongoing basis, following the lead of the Council.
	I do not find it easy to accept the argument made by the noble Lord, Lord Howell, that the larger the grouping of nations, the more important it is not to have a leader. That is like saying that a company that is global in its operations should not have a chairman. The initiative, which was taken by the British Government in this respect, in the Convention on the Future of Europe, of which I had the honour to be a member, along with the noble Lord, Lord Tomlinson, was very properly directed towards removing one of the weaknesses of the constitutional arrangements that still exist. I am glad that the British Government were successful in persuading others of the importance of the measure that was taken. I very much hope that this amendment will now disappear and not trouble your Lordships' House any more.

Lord Willoughby de Broke: Like the noble Lord, Lord Howell, I agree with the amendment. Why do we need this long-serving, long-time president? That was answered in a sense by the noble Lord, Lord Hannay, who made a Jesuitical point about efficiency and effectiveness. Well, it depends how you define those two words, but it seems to me, and to others in our position, that the European Union has been perfectly effective or efficient enough already, both on the national and international stage, with a rotating presidency.
	I do find it rather odd, again picking up on something that the noble Lord, Lord Hannay, said—I hope I have not misunderstood him—that it would relieve the burdens on smaller countries, such as Cyprus and Malta, not to have a presidency or to be a long way down the line to have a presidency. That seems to me extraordinary. All the federalists make great play about equality of nations and what a wonderful brotherhood this is, yet it seems to me that there is a first and a second division—those who will have the presidency and those who will not have it. Surely, it is much more sensible, if you are to have this figure, that he should remain short-term and that the presidency should be rotating and go around all the nations, even if they have it only every 14 years. That would not be terribly onerous. The noble Lord, Lord Forsyth, is absolutely right: this is naked empire-building. It is giving the European Union a presence on the world stage which it fears that it may not have at the moment, with a rotating president. Personally, I think that it is a very good thing from the point of view of our party—but be that as it may.
	I move on to another point that has not been raised in this debate. I sincerely hope that we do not have a long-term president of the EU with all the trappings. I do not give any particular credence to this, but I have heard that the president will be salaried, have a house and staff, have a helicopter or two and several limos. We do not know about that; that is by the by; but the position is being built up. But if the EU is going to be a figure in the world—and it is obviously the design that it should have a position on the world stage—can I ask the Minister or her proxy what the position would be of Her Majesty the Queen, relative to the president of the European Union? We are a member state and Her Majesty the Queen is under the Maastricht treaty a citizen of the European Union. I wonder how or if her constitutional role would change, under these arrangements. Who would receive ambassadorial credentials? Who would represent Great Britain at international conferences, or at any international event in which the European Union might have a role and the United Kingdom might be separately represented? Would it affect her role as head of the Commonwealth, for instance?
	I ask those questions simply for information. It is important that we get some answers during these debates, whether now or at a later stage. The noble Baroness, Lady Quin, said that she was rather dubious about Switzerland's credentials as a democracy because it had denied votes to women for such a long time. Well—that is Swiss democracy. There was a referendum in the local canton of Appenzell, where they voted against having the representation of women. It may be reprehensible, but that is what happened; that is what they wanted. They changed their minds and now women are fully represented, of course. The Swiss have a terrific representative democracy. They have referendums on almost everything. There is almost perhaps too much representative democracy there, as the Swiss sometimes say. But, of course, that is a happy position to be in, when you have too much democracy. In the EU we have much too little.
	I therefore support wholeheartedly the amendment of my noble friend Lord Howell and look forward to having one or two of the questions that I put, particularly on the monarchy, answered this evening.

Lord Tomlinson: I was going to say that it is a pleasure to follow the noble Lord, Lord Willoughby de Broke, but, having heard that intervention about how the amendment would impact on Her Majesty the Queen, I think that he is either demonstrating that he has not read the amendment that he purports to support or that he is completely out of touch with its effect.
	Unusually in this debate, I join in agreement with a remark made by the noble Lord, Lord Forsyth. When referring to the speech of the noble Lord, Lord Hannay, he said that it was revealing. Indeed it was. It is the first speech that totally revealed what this part of the treaty is about. It was revealing and helpful and stands in contradiction to many of the other speeches made in the debate so far.
	I wanted to address one or two comments to the intervention of the noble Lord, Lord Stoddart. He asserted with absolute confidence that the smaller states do not want this measure. I wonder, therefore, how on earth it ever got into the treaty. Were they deceived or were they all so stupid that they did not understand what they were doing, or did they actually support the proposition? Those are rhetorical questions, so I hope that noble Lords will not feel that they have to answer them. I am amazed by the noble Lord's remarks. He went on to make a remark that immediately reminded me of my noble friend Lord Hogg of Cumbernauld, who has not been able to be with us for just over a year due to ill health. However, I am sure that if he were here and had heard the noble Lord, Lord Stoddart, describe this measure as a pig in a poke, he would have stood up with the same alacrity that he displayed when, as a committee chairman, he replied to Mr Dennis Canavan in the other place when the latter accused him of trying to sell the committee a pig in a poke. My noble friend Lord Hogg pointed out to him that while there was a Hogg in the chair there would be no references to pigs in pokes or anywhere else. As soon as I hear the phrase "pig in a poke" I remember my noble friend Lord Hogg, as I do today.
	The noble Viscount, Lord Trenchard, also made an important point. He said with great confidence to my noble friend Lord Sewel, who made an intervention, that, unlike the president of the Council, the president of a cricket club does not send ambassadors here, there and everywhere. However, the president of the Council will not be doing that either. The full-time, or longer term, president of the Council will have nothing to do with the external action service either in terms of its employment or deployment. Its deployment will be the responsibility of the Commission, particularly as regards the high representative. It will certainly not be a personal service at the disposal of whoever happens to be the president of the Council.
	With those few words I echo the view expressed by a number of speakers. I hope that this amendment is withdrawn so that we can get on to ones of more substance.

Lord Pearson of Rannoch: I support this amendment by underlining some of the questions put by my noble friends Lord Stoddart and Lord Willoughby de Broke. We are once again dealing with a well-worn area of Europhile propaganda, which runs that the European Union would grind to a halt if it does not have the constitution. The French and the Dutch knocked that one on the head and we had a one year and then a two year period of reflection. We are now told that the European Union will grind to a halt—some of us wish that it would—if it does not get this new treaty with a permanent president strutting the world stage for two and a half plus two and a half years in the interests of the bureaucrats and Europhiles who support him.
	I have one question for the Minister, which I think undermines the position taken by the noble Lord, Lord Maclennan, and others. Since the rejection of the constitution by the French and Dutch people, does she accept that the pace and speed of European law-making has gone up by 25 per cent? The requirement for unanimity was no barrier to this increased speed of law-making, which occurred because laws were easily validated, as is generally accepted.
	So why do we need this new treaty? We did not need the constitution and we certainly do not need this new president. That is the question and I would be very happy to receive an answer.

Lord Wallace of Saltaire: Once again, I ask what the noble Lord's sources are. I recognise some aspects of Professor Helen Wallace's paper for the European Commission and perhaps some of his sources are what she actually said. It is a paper that I am familiar with. She said that the speed of decision-making has, indeed, increased somewhat in the past few years, but that the number of Acts passed has not increased. With the preclusion of a large amount of legislation, speed has increased but the mass of legislation has not.

Lord Pearson of Rannoch: This evening, I am ready for the noble Lord, Lord Wallace. When he put a question to me earlier about the thousands of British troops that will be committed to the new European army, I was a bit flummoxed, because I had read the original in French. The Leader of the House tried to help me by sourcing my quote to Open Europe. When we come to the defence issue, I have the sources of that information, which are the Figaro and a very senior figure in the French Administration.
	Regarding the question that the noble Lord has now put to me, the origin of my suggestion and my question is the Sciences Po institute in France, with which I hope the noble Lord is familiar. That is where the quotation comes from and it has been validated in Germany and in at least one Scandinavian country. I believe it to be factual. The absence of the constitution and, I maintain, the absence of this treaty, and certainly the absence of the European president, to which the amendment refers, will have little effect on the speed and quantity of European legislation. I suggest that we accept the amendment and see this project for what it really is.

Baroness Ashton of Upholland: Again, this has been an interesting debate. I only raise with noble Lords the time, because for noble Lords who I know have been clear that they want to complete the Committee in good time and in good order, I suggest that at the next Committee day we think about the length of our contributions, regardless of the intensity of debate, which I accept has been very important. I am grateful to my noble friend Lady Quin, because it is very important that we girls get in on this debate. It is a boy-dominated discussion.
	I cannot answer the question of the noble Lord, Lord Pearson of Rannoch, about 25 per cent; I do not have the faintest idea what he is talking about, but I have no doubt that he will provide me with his sources and I shall be able to give him a full and factual answer. I have received a letter from Open Europe about the issue of its briefing, mentioned last time, in which it pointed out that there was an article in a newspaper. I have to say that I was looking for more authoritative sources. I will look at who wrote the article; I, too, can read it in the original French and we shall see where these debates take us.
	Let me respond to the amendment by being clear on where we began our discussions on the purpose of the treaty. It related to the question of how we managed a European Union of 27 nation states, with a possibility of that number growing by one, two or possibly more, and made ourselves as effective as we possibly could, not only between ourselves as nation states, but on the world stage. I accept—and noble Lords have not made much of this, but it was an important element of the debate in another place—that the three presidencies working together, including the presidencies to come, have been important elements in making sure that there has been synergy, collaboration and continuity between those who have had the privilege of serving on the Council of Ministers in relation to all the aspects of European work and those who have chaired them together and thought through the continuity of what we do.
	As a former justice Minister during the UK's presidency who has had the privilege of chairing several Justice and Home Affairs Council meetings, I firmly believe that there is a real issue that we have to think about. We have been clear in the UK that it is a good move to think about the creation of a new full-time president of the European Council, because we have in Europe a strategic agenda which national prime ministers and presidents set for the European Union. The noble Lord, Lord Forsyth, rightly says that there are occasions when there is disagreement between member states. The role of the president is to be a functionary of the Council. The president is not making policy but rather representing the European Union on the world stage.
	I looked back at the relations between the European Union and Russia, a country which was discussed earlier in our debates for different reasons. While Mr Putin was President of Russia, he met 16 different European leaders in their role as EU President—beginning with Portugal in May 2000, interestingly, running through the gamut of European countries and ending up with Portugal again in October 2007. Those who have the good fortune to chair the European Council are also running their own countries and have their own priorities as national Presidents or Prime Ministers. They arrive to take over the mantle from a President or Prime Minister before them and try to continue a debate which is often at a critical stage or are in the middle of deep negotiations with another member state. From my small and irrelevant experience of chairing the Justice and Home Affairs Council, I know that just when I had got to grips with things, I handed over the baton to somebody else. That does not matter on those councils where three presidencies are working together on issues that are beneath the strategic issues, looking at the role of the European Union on the global stage. However, it does matter when you are thinking about how to make sure that you have continuity in dealing with global issues. I believe that for an individual to represent the views where we have consensus between 27 member states for two and a half years plus two and a half years, and no longer, is a sensible solution.

Lord Forsyth of Drumlean: Let us take the specific example of energy policy in relation to our relations with Russia, with President Putin. Germany would have a completely different view from Britain. How could this president represent those views?

Baroness Ashton of Upholland: The noble Lord makes a very important point. First, those discussions would largely be held between the energy Ministers working together on the appropriate Council of Ministers with the appropriate opposite number in Russia. When it came to the big strategic discussions, if there was not unanimity of agreement between the 27 member states, the President would not be able to represent a single view, and that is as it should be. We are not arguing that this person should start to make policy. The noble Lord shakes his head. I understand that that feels rather odd but it is no different from the present situation, with a rotating presidency every six months. Flawed though it may feel to the noble Lord as a strategic approach, it is the way forward in representing 27 member states where you need clear agreement on a particular policy. Rather than investing in an individual for a very short time, one is investing in an individual for a longer time. If that individual is regarded as a success, they can continue for a little longer and one gets continuity in negotiations. From his time as a Minister, the noble Lord will understand that continuity is an issue that is constantly faced. The principle behind that should be recognised by your Lordships' House and by this Committee in particular.
	That is, for me, the fundamental argument behind why this is such a sensible and straightforward proposition. It is not about glorifying individuals; it is about effectiveness and the ability to represent properly and see things through with a sense of continuity, which we cannot do at present.
	Members of the Committee referred to the Blue Book again and I have had a letter from the author. None the less, I believe that what is said at the beginning of the book is incorrect. I shall not go into that in greater detail now, because I want to discuss it with the author. I am in no way suggesting that there is something fundamentally wrong with the book. As I said in our previous discussion, it was because I could not understand why noble Lords, faced with what is in the treaty, could reach a different conclusion that I went back to as many references as I could to see whether they might have read something that is still, in my view, inaccurate. I have asked for advice. I will not go further because I want to meet the author—I have met him before—and I do not want to say anything more until then.
	It is very important to consider how valuable someone in that position might be. The noble Lord, Lord Willoughby de Broke, asked specific questions about the role of Her Majesty the Queen. I want to be absolutely clear. Her role is completely unchanged. The constitutional position is unchanged. Representation for the UK would be, as appropriate, Her Majesty or the Prime Minister. Nothing is changed by the treaty or anything within it. I hope that that puts the noble Lord's fears and concerns at rest.
	In the end, this is a debate between noble Lords who are concerned to see in the treaty ways in which they fear the growth and development of the European Union and those who see the treaty as an opportunity to develop the European Union, retaining what is rightly ours as a nation state but collaborating effectively together and finding new structures to take that forward. I sit firmly at the latter end of the spectrum. I hope that the noble Lord will feel able to withdraw his amendment.

Lord Howell of Guildford: The noble Baroness the Lord President puts her case very reasonably and quite persuasively, but the truth is that behind this debate is a very deep division between those who want practical, detailed co-operation in the regional grouping that is the European Union—that is, us—and those who are looking for a place in the sun, a world role, a place on the world stage, as many European leaders are calling for. They are looking, in the words of the noble Baroness, for "a strategic global agenda" and a representative who can lead on that: this near-permanent president, someone who can hob-nob with the United States President and the President of Russia and can answer the telephone when Henry Kissinger rings up for one number, as he once claimed he did when he wanted to find out European external policy. That always seemed to me a particularly absurd ambition, because when you ring Washington, you get about 10 different views of foreign policy there. Why he should think that we could unify in Europe, I do not know. The answer is that we cannot. We can unify on some things in practical ways, in coalitions of groupings of European nations, and we do so, but we do not need the rigidifying and codifying of this under new laws and new treaties and a central figure, who would inevitably become the celebrity—the Mr Europe—whose views were taken to be the views of Europe as a whole, where they could be formulated.
	I agree very strongly with my noble friend Lord Trenchard that in this modern, networked world, blocs are yesterday's idea. Gathering together in some bigger grouping—or scrum, as it were—is not the way forward for a country such as this with all its historic abilities, qualities and skills in negotiating the chopping and changing of foreign policy with the complete changes in the centre of power and economic gravity that are taking place, which make our links with Asia as important as our links with our nearby neighbours in Europe. So there is an important deeper division. The noble Baroness's persuasive explanation does not convince me that that hers is the right way forward. This also damages the position of smaller countries. They may have signed up to the treaty—some have, but there has been a lot of grumbling. If the rotating system is to end, they will be cut out of the scene at the highest level for a time.
	The noble Lord, Lord Roper, took me to task about the definition of who was and who was not on the Council. I think that he was probably right, because he is very well informed on these things, but it does state in the treaty:
	"The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy shall take part in its work".
	That may not make him a full-time member, but he is there, taking part in the work of the European Council, as well as being the vice-president of the Commission. That is blurring the international and the supranational in ways that are very dangerous for the future. If we are blind to that, we will be blind to a lot of trouble in future.
	There was also an intervention, again from the noble Lord, Lord Roper, about CFSPs, a no-go area for qualified majority voting. That has been asserted by the Government and it is claimed in the treaty. I think we will be able to prove without challenge in later amendments that that simply is not so and that the CFSP is exposed to QMV arrangements in Article 32—I think it is renumbered as Article 17(2)—where the new Foreign Minister can bring forward decisions for QMV in the Council. There are 10 other areas where QMV also comes into foreign policy issues. Do not let us be quite so certain, as some people seem to be, that QMV is out of CFSP and that it is in an area where our veto is maintained. It is not.
	Finally—I know we want to be brief so we can get a little more work done tonight—as for the words of the noble Lord, Lord Dykes, I suspect he has been put up by his colleagues as the terrier who is designed to provoke the wicked Tories and to describe us as what we are not, which is anti-European. We are strongly pro-European and always have been in ways that many others, particularly the zealots who want to push everyone together in an over-integrated system, are not.
	In your Lordships' House, which I much enjoy, many of my individual friends are on the Liberal Democrat Benches. Collectively, however, I really cannot conceal my contempt for their supine yesterday Europhilia. They are the embodiment of everything that brings my beloved Europe into disrepute and which elevates the worst features of unaccountable bureaucratic power in Brussels and downgrades Europe's best features of diversity, variegated vitality and democratic legitimacy.

Noble Lords: Hear, hear!

Lord Howell of Guildford: When it comes to the Brussels bureaucracy, all I can say to my Liberal Democratic colleagues is that they make poodles and lapdogs look positively rebellious.

Noble Lords: Go on!

Lord Howell of Guildford: Having said that, I am very tempted to press such a serious issue but it is late and we will return to this matter because it is of fundamental importance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Leach of Fairford: moved Amendment No. 10:
	Clause 2, page 1, line 12, after "excluding" insert—
	"(i) Article 1, paragraph 17, inserted Article 9C TEU, paragraph 4, and Article 2, paragraph 191 TFEU, replacement Article 205(a), paragraph 3; and(ii) "

Lord Leach of Fairford: In the absence of my noble friend Lord Blackwell and at his request, I will do my best to speak to the amendment standing in his name.
	This concerns the new voting arrangements in the treaty, about which there has been a certain amount of black smoke. The Government has asserted that our voting influence will increase as result of the treaty. This is such a partial account as to be positively misleading. What the treaty actually does is to increase countries' power to pass measures but to reduce their power to block them. This is a crucial distinction that has not been adequately recognised in debates, either inside or outside Parliament.
	Under the system agreed at Nice, EU laws presently have to pass three hurdles: 74 per cent of the weight of votes in the Council plus 62 per cent of the population and a majority of member states. Under the treaty there will be just two hurdles: 65 per cent of the population and 55 per cent of the member states. The highest hurdle has therefore been taken away, making it easier to pass legislation. This is what people must mean when they talk about streamlining decision making.
	These changes will make it harder to block legislation. Germany will be the only large member state whose power to do so would remain roughly the same. The London School of Economics has gone to the trouble of doing the arithmetic. I hope they have got it right. They quantify the UK's loss of blocking power at 30 per cent.
	As with so much of the Lisbon treaty, the new voting system is taken directly from the Constitution with the difference that it will now not come into force until five years after the rest of the treaty comes into force, in other words not until November 2014. Europe would not be Europe without a thicket of almost impenetrable detail, but I will spare your Lordships the complex interim arrangements up to March 2017 and the various exceptions and deadlock-breaking compromises in the text. These are a sideshow to the main point that stopping unwanted laws will become more difficult. Originally, and we have heard this before too, the Government were against the new system. Peter Hain said:
	"We see no need to revise the deal made at Nice".
	But somewhere along the line our objection was dropped.
	Why should we be more concerned about blocking legislation than about passing it? The answer is straightforward. The Union is already producing too much regulation and it is too difficult to repeal it. A recent poll of 1,000 UK chief executives found that more than half of them thought that the benefits of the single market are now outweighed by the costs of EU regulation. That is an absolutely shocking result, but perhaps of little surprise to those of us who spend our days in business and away from Westminster and Whitehall. In fact, you could not walk into a small firm, charity or community centre without finding a similar level of resentment at the unending flow of EU rules, admittedly often gold-plated domestically. The latest edition of the Laws of England has doubled to 100 volumes, with most of the new laws, according to the editor, coming from Europe.
	According to the British Chambers of Commerce, EU regulation introduced since 1997 has cost British firms £40 billion, nearly three-quarters of the cost of all regulation introduced since that date. So making it even easier for Brussels to churn out laws seems extremely unwise. I shall give a couple of specific examples. The UK is currently blocking the removal of our exemptions from the working time directive. We are also resisting the temporary agency workers directive. Our ability to defend our position in the Council, particularly on the second directive, is fragile, and under the new system it would probably collapse altogether. In boom times we can just about live with all these impositions, but in difficult times we become more acutely aware of the drip-drip of business going elsewhere and of companies and wealth producers packing their bags for more competitive economic climates. The Financial Services Action Plan is costing the City £14 billion to implement. That was bad enough when the financial sector was flourishing a year or two ago, but today it is a heavy blow after Northern Rock and the liquidity crunch.
	As well as reducing our ability to stop legislation, the Lisbon treaty would also hinder our ability to amend it as it goes through the Council by using the weapon of our blocking power to improve draft laws and head off protectionism. Some of the more unacceptable proposals in the directives on financial instruments, prospectuses, consumer credit and transparency were only removed by the UK and other liberal member states through combining our potential blocking vote and threatening to use it. There are important regulations still in the pipeline, such as the Solvency II regulation on insurance, and it is almost inevitable that there will be a legislative response to the credit crisis. In both cases, the UK will be affected disproportionately, given the City's pre-eminence in the financial sector. It is therefore all the more important to be able to stop ill-judged laws.
	Climate change regulation is another area of some concern. The emissions trading scheme and the biofuel targets are both deeply flawed. Some in the House today have called them a disaster. Now there is talk in France of jacking up EU farm tariffs on climate-related grounds. As the Financial Times pointed out yesterday, Monsieur Barnier's proposals are very dangerous. The consequences of our being unable to block agricultural protectionism are very alarming for impoverished African farmers.
	The line is that without the treaty, the Union will grind to a halt. There is no evidence whatever to support this assertion. The EU of 27 member states has proved to be a more prolific legislative machine than the EU of 15. Members tonight have already referred to the Parisian Sciences Po institute, which found that the EU has been adopting new rules and regulations faster since enlargement. The voting system introduced by the Lisbon treaty is therefore unnecessary. Indeed, it is worse than unnecessary. It risks negating the liberalising reform agenda in Europe that this country has so long stood for. I beg to move.

Lord Roper: I do not wish to detain the Committee for long, but I would like to comment on one or two things said by the noble Lord, Lord Leach of Fairford, in moving this amendment. When the noble Lord came before the Select Committee to give us evidence, we were pleased when he told us that it was hard to object to the principle of recognising population in the voting system. Indeed, we were so pleased with that remark that we quoted it at paragraph 4.56 of our report.
	On the more substantive issue to which the noble Lord referred—the weight of the United Kingdom in the new voting system—there are two points to be made. As to building up a majority—and we are normally in the majority—our weight will go up from 8 per cent to 12 per cent, so we will have 50 per cent more weight when we are trying to build up a majority to get something agreed. When we come to blocking, there is a dispute. The noble Lord is quite right. Open Europe, in its report, states that the UK stands to lose nearly 30 per cent of its ability to block EU legislation in the Council. On the other hand, others, including the Government, consider that the UK's share of a blocking minority will increase from 32 per cent to 35 per cent. Therefore, there is a dispute on this matter. I happen to accept the views of the Government, which were supported by others.
	There is another point. At the moment, it is necessary to have only three member states in order to have a blocking minority. That is increased under the treaty to four member states, which could be argued to disadvantage us in some way. However, we were impressed when a former British representative to the European Union, Sir Stephen Wall, told us that the current minimum of three member states to form a blocking minority was a mistake, because it is not often that we are in league with two other large member states in wanting to block something. He did not think that the minimum of four would be significant in terms of undermining the British ability to block. I do not believe that the changes in the Lisbon treaty in this respect are significant and, therefore, I do not believe that this amendment deserves support.

Lord Hunt of Wirral: I completely agree with my noble friend Lord Leach of Fairford. I am pleased to see in his place my noble friend Lord Forsyth of Drumlean, because he and I experienced at the front line what can go wrong and why it is so important to get these checks and balances right. We encountered what is affectionately known as the Lazarus system. We were reliably informed that a whole series of directives that would have impacted on the UK's competitiveness were dead and buried. We had not realised that it was perfectly possible for them to be revived, so we knew these directives as the Lazarus directives. Some of them have been quoted by my noble friend. They indeed impact on our competitiveness. We have to consider the jewel in our crown of financial services and the pre-eminence of the City of London. The idea of the more legislation, the better can run directly counter to our national interest. That is why I think that the noble Lord, Lord Roper, conceded that there were areas where we suffer in our ability to stop the flood of legislation and it is why I support my noble friend.

Lord Bach: I start by saying how much we welcome the noble Lord, Lord Leach of Fairford, stepping in to move this amendment on behalf of the noble Lord, Lord Blackwell. I am led to understand that this is the first amendment that he has moved in this House; to do so at 10 minutes to 10 after a long, heavy day of Committee work demands more than is usually required. I congratulate the noble Lord, although I shall not agree with him. I hope that that does not come as too much of a disappointment or surprise to him.
	His amendment would exclude the provisions in the Lisbon treaty that set out the new double majority voting system from having any effect in UK law. To us, this a key institutional reform introduced by the treaty and one which means that decision-making will become fairer, reflecting more accurately the relative population sizes of the member states and, at the same time, increasing the UK's voting weight.
	We believe that the new system will ensure more effective decision-making in the enlarged EU. As it is based on population, surely it is more transparent and fairer than the current QMV system. As has already been said by the noble Lord, Lord Roper, our share of the votes in the Council of Ministers will rise substantially from 8.4 per cent—that is, 29 votes out of 345 under the incredibly complex Nice system—to 12.3 per cent.
	The treaty of Lisbon updates the EU's institutional structure to reflect the fact that the EU now has 27 member states and faces new global challenges and opportunities. Frankly, effective co-operation in the EU will be essential in meeting those challenges. The treaty updates the EU's institutional structure in a number of different ways, and we have discussed some of them tonight. That structure was designed for a different era and we believe that the changes will enable Europe to act more effectively. It is in our country's interest to see more effective decision-making in areas such as energy, the environment and counterterrorism. It is not in our interest to see gridlock as an EU of 27 becomes, it is hoped, even larger in the future.
	While considering the merits of a voting system, we have to bear in mind that a single member state is only as strong as the coalition of which it is a part. The benefits, or otherwise, to the UK depend as much on the change to the strengths of other countries as to the UK. By way of example, Germany, which was referred to by the noble Lord, will, as the largest member state by some margin, be the biggest beneficiary of the move to a voting system based on population. Thus, in votes where the UK and Germany are on the same side—as we tend to be, for example, on budgetary issues—DMV is in the UK's interest not only because our vote increases but also because the German vote increases too.
	Under the new system, it will be simpler to update the voting weights if and when new member states join. Because we will have in place a system based essentially on population, rather than prescribing each country a specific number of votes, we will not need to renegotiate the system every time a new country joins. That could be particularly important as Croatian accession moves closer. It is part of a sensible updating of the institutional framework of the Union to equip it to act more effectively in pursuit of shared interests.
	It has been alleged by some—the noble Lord referred to this—that double majority voting would reduce our blocking power. I have seen figures, and they have been mentioned today, suggesting that our blocking power would be reduced by some 30 per cent. Those figures are discredited. Those who used them quoted from a paper published by academics at the London School of Economics in June 2004. One of the authors of the paper, Professor Machover, has made it clear to us that, in his view, under the new voting system the UK's relative position will substantially improve. The Select Committee, under the chairmanship of the noble Lord, Lord Grenfell, who is in his place, concludes:
	"The new system for calculating a qualified majority is more equitable and takes more account of population than the current QMV rules, and the revision is significant".
	The committee also repeated:
	"The UK's voting weight increases from 8 per cent to 12 per cent".
	Finally, we have analysed situations where the UK has recently been in blocking minorities on sensitive issues, such as on the soil directive, the payment services directive, the 2008 Community budget and the European fisheries fund. In each and every case, I am advised that we would have also been in a comfortable position to defend our interests under these new rules.
	We step, then, into the field of qualified majority voting. I hope that the Committee will agree that it is really too late to start a debate on that—on its virtues or otherwise—tonight. However, if there are members of the Committee against qualified majority voting in principle, it is important to remember that the first use of it was in the treaty of Rome; it was extended further by the Single European Act. The Government recognise, as we did at Nice—and as our predecessors did in the Single European Act, and at Maastricht, which followed it—that, as the Union grows in size, decision-making by unanimity can become more difficult. QMV can make that easier.
	The example, of course, is that the single market could never have been built, nor would much legislation have been passed on, for example, the environment, market liberalisation or reform of the common agricultural policy, without QMV. With the greatest of respect, I will quote the noble Baroness, Lady Thatcher, who said in this House, long ago now, in 1993:
	"We would never have got the single market without an extension ... of majority voting ... we wanted a single market, and we had in fact to have some majority voting".—[Official Report, 7/6/1993; col. 562.]
	I hope that—

Lord McNally: Earlier today, the Minister made a useful intervention about the speed of this Committee. We have reached Amendment No. 10. By my calculations, looking at the Marshalled List, we will need another 30 days in Committee to complete this Bill. May I make it clear, with both Chief Whips in their place, that on these Benches we are, in the four remaining days, willing to sit until midnight and, if necessary, through the night to see this Bill through? I have sat through many Committee stages in this House and I have never known such self-indulgence from Members on the opposition Front Bench, who have toured so many horizons in their interventions and given vent to so many old prejudices. I therefore think that the Opposition had better go away and think hard about how they will play this game, because their behaviour goes into dangerous territory.

Baroness Anelay of St Johns: I hope that the noble Lord, Lord McNally, will reflect carefully on the words that he has just uttered. This is a Bill of constitutional significance. These Benches take the Bill seriously, as we do the scrutiny that this House carries out so valuably. I am aware that, today, Members of the Committee from all Benches have given their expertise and, while I may not have agreed with what they said, I certainly agree with the way in which they said it. We on these Benches will defend the right of this House to carry out proper scrutiny of Bills. We do not abuse process; we use it. We undertake to continue to do that, as we do now, with honour.

Lord Bach: Before I invite the noble Lord to withdraw his amendment, which I was about to do, I am certain that the usual channels will be discussing the progress of this Bill in the usual way. With thanks to the noble Lord again for moving his amendment, I ask him to withdraw it tonight.

Lord Pearson of Rannoch: Before the noble Lord, Lord Leach, does that, I really must put on record the fact that the Minister took my noble friend Lady Thatcher seriously out of context when he just quoted her. As her latest book reveals, she has changed her mind much since then. I would not want this evening's debate to finish on a note of unfairness to the greatest peacetime leader that this country has had for many years.

Lord Bach: I hope that I did not do the noble Baroness an injustice; I certainly did not intend to do so. But the quotation about the use of qualified majority voting for the single market is on the record; it is a fact. I hear what the noble Lord says about that but my quotation was fair and is relevant to the amendment that is before the Committee.

Lord Leach of Fairford: It is getting late and I shall try not to detain the Committee for too long. I am extremely grateful to the Minister for his generous remarks. I did not expect them and I do not deserve them, but it was kind of him.
	The noble Lord, Lord Roper, rightly quoted against me—perhaps not against me, but with me—my remarks that I thought it would be a good thing to reflect a little more the weight of population. I said that and I still believe it, and it is reflected in the treaty. But that is not where the shoe pinches; that is at another stage of the triple majority process. So although I welcome it, it is not really the main point.
	I struggle with the thought—perhaps my logic fails me at this hour of the night—that it can be both easier to pass and easier to block legislation, which appears to be what is being said by those who disagree with my analysis and that of the LSE. I am grateful for the critique of the LSE analysis and I shall certainly look into it. If the LSE has it wrong, it has it wrong, and it will not be quoted by my lips again. But if it has it right, you may hear from me again.
	The Minister returned to the question of effectiveness, a theme which has been raised quite often today. I am in general in favour of effectiveness, but in the matter of passing laws—where we already have an enormous mass of laws, where the weight is so great and where there are recurrent promises from generation to generation that they will be cut back by 25 per cent while the exact opposite happens—my enthusiasm for greater effectiveness is considerably muted.
	Gridlock was quoted in connection with matters such as climate change legislation. If there had been gridlock on biofuel limits and on the emissions trading system, we would be a great deal better off because we could have used that gridlock to give some thought to these proposals, which have turned out to be extremely ill judged. We might then have got them right in the first place instead of struggling to get them right the second, third and fourth time round, or even cancel them altogether.
	My main purpose, however, on behalf of the noble Lord, Lord Blackwell, was to highlight the economic costs of EU regulation and the danger that this will escalate further by easing the process of passing new laws. That, at least, is agreed on by both sides of the Committee. I shall reflect carefully on the thoughtful points that have been made. I may return to this issue at a later stage, but for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Royall of Blaisdon: Before the House resumes, I would like to assure noble Lords that the excellent scrutiny undertaken by the Committee will continue. I am glad to say that we have four days of Committee left. Before we meet again as a Committee, my colleagues in the usual channels and I will be discussing how we move forward with this excellent scrutiny in the time we have left. With that, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

St Austell Market Bill

The Bill was brought from the Commons, read a first time and referred to the Examiners.
	House adjourned at 10.15 pm.